Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

Posts categorized "Habeas"

Tuesday, 22 July 2014

Eight retired federal and state judges on Monday asked the U.S. Supreme Court to accept an appeal by Rodney Reed, who faces a January execution in the 1996 rape and murder of 19-year-old Stacey Stites in Bastrop County.

The former judges said they were taking no position on Reed’s claim of innocence or his insistence that he should be granted a new trial because he received poor representation from his trial lawyers.

Rather, they said in a friend-of-the-court brief submitted Monday, that the Supreme Court should intervene because a lower appeals court did not follow the correct procedure when it rejected Reed’s appeal in January.

According to the retired judges’ brief, the 5th U.S. Circuit Court of Appeals should have ordered a district judge to review Reed’s claims — hearing live witnesses who were cross-examined by lawyers — but instead engaged in improper fact-finding based on a “cold record” of briefs and affidavits.

And:

The retired federal judges in the brief were Royal Furgeson of Texas, appointed by President Bill Clinton; U.W. Clemon of Alabama, appointed by President Carter; Lee Sarokin of New Jersey, appointed by Carter and Clinton; Stephen Orlofsky of New Jersey, appointed by Clinton; and W. Thomas Dillard, a nonappointed magistrate judge in Tennessee.

The state judges included Charles Baird, a Democrat who served eight years on the Texas Court of Criminal Appeals and four years as a district judge in Austin; Sol Wachtler, a Republican formerly with the New York Supreme Court; and Oliver Diaz Jr., formerly with the Mississippi Supreme Court in a nonpartisan position.

Friday, 06 December 2013

In a nationwide ruling, a Bay Area federal judge has blocked the Justice Department from authorizing states to put their death penalty cases on a "fast track" once they reach federal court, with tight schedules for inmate appeals and judicial rulings.

A 2005 federal law, which has never taken effect, allowed the Justice Department to approve fast-track authority for any state that appointed competent, adequately paid lawyers to represent condemned prisoners. But Chief U.S. District Judge Claudia Wilken said Wednesday that the Obama administration's rules that were supposed to implement the law failed to require states to show the lawyers they provided were competent.

A 1996 law that established the fast-track process gave federal judges, rather than the Justice Department, the power to decide whether a state had a system of competent legal representation for death row inmates. Judges have turned down every state that has applied for fast-track authority, including California in 2000.

Wilken's injunction, in a suit by defense lawyers in California and Arizona, leave the 1996 law in effect.

And:

Prisoners whose convictions have been upheld in state court have the right to seek federal court review, which in capital cases can last anywhere from two years to a decade or more.

The fast-track process would give a condemned prisoner six months, instead of the current one-year deadline, to file a federal appeal after the final decision in a state court. A federal judge would then have 15 months to rule on the appeal, and a federal appeals court would have a four-month deadline after receiving all written arguments.

Monday, 07 October 2013

The U.S. Supreme Court on Monday declined to consider Warren Hill’s
bid to halt his execution on grounds he is mentally retarded.

Hill’s
lawyers had filed the petition directly to the high court, saying they
now have evidence that shows they can prove Hill is mentally retarded
and thus ineligible for execution. But the high court on Monday issued
an order denying it.

And:

Hill’s execution remains on hold while the Georgia Supreme Court hears
his challenge to a new state law that keeps secret the identities of
those who make and supply Georgia’s lethal-injection drugs.

Warren Hill's attorney, Brian Kammer, has issued the following statement:

“We are gravely disappointed that the U.S. Supreme Court has failed to act to ensure the protection for persons with intellectual disability that was promised by the Court’s 2002 ruling in Atkins v. Virginia.

It is the unanimous opinion of all doctors who have examined him that Mr. Hill is a person with mental retardation. However, Mr. Hill has been procedurally barred from proving his exemption from capital punishment, which is why he brought his case to the U.S. Supreme Court, in the hopes that the Court would ensure that the evidence of his intellectual disability would be heard.

It is tragic that our highest court has failed to enforce its own command that persons with mental retardation are categorically ineligible for the death penalty.”

Because it has a specific meaning with respect to capital cases, I continue to use the older term on the website. More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Friday, 04 October 2013

This morning, Herman Wallace passed away. Below is a statement from his legal team, as well as background information about Mr. Wallace's life.

Statement from Herman Wallace’s Legal Team:

"For the past decade, it has been our honor to represent Herman Wallace.

“Herman endured what very few of us can imagine, and he did it with grace, dignity, and empathy to the end. He remained committed to standing up for himself and his fellow prisoners, including Albert Woodfox who is still kept in harsh solitary confinement conditions in a Louisiana prison. Despite the cruelty Herman was shown, he had no hatred in his heart.

“Although his freedom was much too brief, it meant the world to Herman to spend these last three days surrounded by the love of his family and friends. One of the final things that Herman said to us was, ‘I am free. I am free.’"

In the film, Teenie Verret, the widow of Brent Miller, said of the
killing, “If they did not do this — and I believe that they didn’t —
they have been living a nightmare.”

George Kendall, who was a lawyer for Mr. Wallace and who confirmed the
death, said in an interview that his client’s original conviction was “a
travesty” based on shoddy evidence, and that the men had been kept in
solitary confinement because they had been members of the Black
Panthers, the black nationalist group. Officials worried “that they
would organize the prison,” he said.

Even from solitary, Mr. Wallace worked to improve prison conditions and
to press his own appeals, Mr. Kendall said. He answered mail from people
who had heard about his case.

“It was a determination he would not be broken by the loneliness of the cell,” Mr. Kendall said.

Mr. Wallace gained further attention for a project that he embarked on
with Jackie Sumell, an artist who had struck up a correspondence with
him and asked him to describe his “dream house.” She then rendered his
imaginings into a scale model of the house, which became an art
installation seen in galleries in a dozen countries.

The project, Mr. Wallace had said, “helps me to maintain what little
sanity I have left, to maintain my humanity and dignity.” A documentary
film about the project, “Herman’s House,” was shown on PBS in July.

A 71-year-old man who was convicted in the slaying of a prison guard
has died less than a week after a judge freed him from a Louisiana
prison after he spent more than four decades in solitary confinement.

Herman Wallace's attorneys said he died Friday at a
supporter's home in New Orleans. Wallace had been diagnosed with
terminal liver cancer and stopped receiving treatment.

U.S. District Judge Brian Jackson had ordered Wallace
released from the Louisiana State Penitentiary at Angola on Tuesday
after granting him a new trial. Jackson ruled women were
unconstitutionally excluded from the grand jury that indicted Wallace in
the stabbing death of the 23-year-old guard, Brent Miller.

Herman Wallace, whose four-decades in solitary confinement in
Louisiana State Penitentiary at Angola made him among the most prominent
symbols in the debate over race and prisons in Louisiana, has died. He
was 71.

Nick Trenticosta, one member of a legal team that had
finally earned Wallace a release from prison and a new trial just this
week after decades of appeals, confirmed that Wallace succumbed to liver
cancer at a friend’s home in Uptown New Orleans on Friday morning.

Since
the 1970s, when Wallace was convicted of killing a guard while serving
time for armed robbery, he has formed part of a trio known as the Angola
Three, all of them former Black Panthers who maintained that they were
wrongly convicted.

After close to 42 years in solitary confinement, Herman Wallace is
free. Wallace is dying of liver cancer, with days if not hours to live
at the time of this writing. In a stunning legal ruling, Judge Brian A.
Jackson of the U.S. District Court for the Middle District of Louisiana
ordered Wallace's release by overturning his 1974 murder conviction. As
he lies dying, Herman Wallace knows that after a lifetime of enduring
the torture of solitary confinement for a crime he did not commit, he is
now a free man.

Herman Wallace is one of the "Angola 3," along
with Robert King, who was released from prison in 2001, and Albert
Woodfox, who remains imprisoned in solitary confinement, despite having
his sentence overturned on three separate occasions. These three men,
all African-American, were locked up in what was considered America's
bloodiest prison, maximum-security Louisiana State Penitentiary, known
simply as "Angola." The sprawling prison is on the grounds of a former
slave plantation, with 5,000 prisoners. It's named for the African
country of many of its earlier enslaved occupants. Prisoners toil in the
prison's fields, overseen by armed guards on horseback.

Tuesday, 01 October 2013

The Federal District Court ruling in Wallace v. Prince, enered by Judge Brian A. Jackson, is in Adobe .pdf format.

Here is the full text of a news release, "Dying Angola 3 Prisoner Wins Full Habeas Relief After 41 Years; Federal Judge Orders His Immediate Release," issued by advocates for Herman Wallace.

Today, Judge Brian A. Jackson, Chief Judge of the United States District Court for the Middle District of Louisiana ruled in favor of Herman Wallace, granting full habeas relief and ordering him a new trial. Judge Jackson further ordered that the State “immediately release Mr. Wallace from custody.”

Mr. Wallace, one of the “Angola 3,” who is dying of liver cancer, served over forty years in solitary confinement conditions in Louisiana prisons.

Judge Jackson overturned Mr. Wallace’s conviction due to an improperly chosen grand jury that excluded women jurors in violation of the Fourteenth Amendment. Judge Jackson’s ruling can be accessed here.

Following is a statement from Herman Wallace’s legal team:

"With today's ruling, at long last, Herman Wallace has been afforded some measure of justice after a lifetime of injustice. We ask that the Department of Corrections honor Judge Jackson’s order and immediately release Herman Wallace so that he can spend his final days as a free man.

“In addition, litigation challenging Mr. Wallace's unconstitutional confinement in solitary confinement for four decades will continue in his name. It is Mr. Wallace's hope that this litigation will help ensure that others, including his lifelong friend and fellow 'Angola 3' member, Albert Woodfox, do not continue to suffer such cruel and unusual confinement even after Mr. Wallace is gone."

-- Herman Wallace’s Legal Team, October 1, 2013

Background on Herman Wallace caseHerman Wallace, a member of the "Angola 3" was held in solitary confinement conditions in Louisiana prisons for over forty years, despite his strong claims of innocence for the 1972 murder of a prison guard in Angola prison. Mr. Wallace has fought his unconstitutional conviction for decades, and is supported by four alibi witnesses who place him in another part of the prison when the tragic murder occurred.

Mr. Wallace’s federal habeas petition was filed almost four years ago, and briefing was complete two years ago in the case. Today's ruling mandates a new trial in the case, but Mr. Wallace is bedridden and dying of advanced liver cancer. It’s time for Louisiana to immediately release this 72-year old man with terminal liver cancer on bail so that he can receive proper medical care as his attorneys prepare for his new trial.

An Unfair Trial: Inadequate Counsel and Evidence Unconstitutionally Suppressed for 25 YearsIn 1972, Brent Miller, a well-loved, young, white guard at Angola prison, was killed. At a time when the prison was highly racially polarized, corrections officers quickly honed in on four suspects who were politically active Black Panthers. In addition to Albert Woodfox, Herman Wallace was one of these men. As with Woodfox, there was no forensic or physical evidence against Mr. Wallace; he was convicted solely on the testimony of four inmate witnesses. Each of these witnesses gave statements inconsistent with their testimony. And, as Mr. Wallace learned decades later, these inmates were provided incentives by the State for their testimony.

For 26 years, the state unconstitutionally suppressed the deals it made with its witnesses in this case, including promises of improved housing and a pardon. The state also suppressed inconsistent statements by these witnesses, which would have been powerful evidence for the defense. Without the credibility of these witnesses, the state does not have a case against Mr. Wallace.

There was a bloody fingerprint and other prints at the crime scene, but none of these matched any of the men prosecuted for the murder of Mr. Miller. Prison officials have declined to test the prints against the 1972 prison population to determine who left them at the crime.

Mr. Wallace’s 3-day trial was fundamentally unfair. His attorney represented Mr. Wallace and two co-defendants, one of whom turned state’s evidence and witness against Mr. Wallace mid-trial, forcing Mr. Wallace’s attorney to cross-examine his own client, with no advanced notice. The attorney later admitted he had no reason not to move for a mistrial but failed to do so out of “shock and confusion.” The attorney did such a poor job that he failed to even file an appeal when Mr. Wallace was found guilty and sentenced to life in prison for murder.

Justice Delayed: Mr. Wallace’s Habeas Petition Languishes With The CourtsSixteen years after his original trial, Mr. Wallace obtained permission to file his own appeal pro se, which made its way through the Louisiana courts for 19 years. Though his appeals were summarily dismissed with a word or a sentence, there has never been a written opinion explaining why the facts and the law do not require a new trial in this case. However, dissenting judges (and the state court Commissioner) have written in detail to explain that the serious constitutional deficiencies in his trial require that Mr. Wallace’s conviction be overturned.

Four years after it was filed, Mr. Wallace's habeas petition won full relief today from a federal court judge. Due to Mr. Wallace’s failing health, it is urgent that the court grant him bail immediately.

Extreme Punishment: Mr. Wallace’s Solitary Confinement and HealthIn addition to his wrongful conviction and life sentence, Mr. Wallace was additionally punished by prison officials, who kept him in solitary confinement conditions for over forty years, despite decades of exemplary behavior. The extreme duration of solitary confinement in the case of three men, including Mr. Wallace, has drawn international condemnation of the treatment of the ‘Angola 3’.

As one judge wrote, the extreme length of Mr. Wallace’s solitary confinement was “so far beyond the pale that this Court has not found anything even remotely comparable in the annals of American jurisprudence.” Wilkerson v. Stalder, 00-Civ-304 (M.D.La)

Cruelly, prison officials also neglected to provide basic health care, including monitoring Mr. Wallace for liver cancer, which he was known to be at risk of developing. Liver cancer is treatable if caught in a timely way.

In summer 2013, after Mr. Wallace lost 40 – 50 pounds, he was given a medical assessment and found to have advanced and terminal liver cancer. Even after this diagnosis, it took over a month for Mr. Wallace to get chemotherapy treatment. That’s why an oncologist and a specialist in internal medicine and geriatric patients have submitted sworn affidavits recommending that Mr. Wallace should be immediately released for medical reasons, so that he can receive adequate medical and palliative care.

Justice for Mr. Wallace Means Release, and Swift Consideration of His Pending Meritorious Claims
Mr. Wallace’s 1974 trial was unfair and unconstitutional, with illegally suppressed evidence that would have cast doubt on the state’s only evidence against him – four witnesses with undisclosed motives to testify, at least one of whom has recanted his testimony entirely in a sworn affidavit. Mr. Wallace’s pending habeas petition offers the court the opportunity to address this egregious miscarriage of justice.

For decades Mr. Wallace has endured the torture of solitary confinement and has fought for the opportunity to present his case in court showing his innocence. At this time, Mr. Wallace is in poor health, with liver cancer. The state should release him on bail so he may receive adequate medical care.

This morning, the justices of the U.S. Supreme Court will gather in their secluded conference room to outline the court's fall term. One task before them involves a legal Gordian knot, a clash of institutional good intentions. At stake is a man's life.

The justices will decide whether to accept the case of Warren Lee Hill,
a condemned Georgia inmate who has exhausted appeals to spare him from
execution on the grounds of his mental capacity. After two trials,
there's no doubt he is a killer. There's also no doubt he is
intellectually disabled and should be protected from execution by a 2002
Supreme Court ruling.

Unless the Supreme Court acts, Hill may die
because federal courts are trying to do a better job. They have
tightened appeals access, severely limiting the admission of evidence
and claims, in an attempt to weed out frivolous cases. The rules have
had undeniably beneficial effects on court caseloads, but unintended and
grave consequences in the Hill case.

Monday, 23 September 2013

"A Rare Plea to the Court," is the title of Jesse Wegman's latest Editorial Notebook column in the Sunday New York Times. Here's an extended excerpt:

The Supreme Court’s next term is full of big-ticket issues — from
campaign finance to affirmative action to the separation of powers — but
a largely overlooked death-penalty appeal the court hasn’t agreed to
hear yet could clarify how broadly it views its ultimate power to stop
unjust executions.

In 1990 Warren Lee Hill beat a man to death with a nail-studded board, and the state of Georgia sentenced him to die.

Mr. Hill is intellectually disabled, according to all seven mental
health experts who have examined him. The Supreme Court banned the execution of intellectually disabled people
in 2002, but Mr. Hill remains on death row, trapped by a welter of
state and federal laws that prevent him from proving his condition in
court. He escaped execution in July only because a state court judge didn’t appreciate Georgia’s attempt to keep secret the drug protocol it planned to use to kill him.

One hurdle for Mr. Hill is that while four of the seven mental health
experts originally found that he met the criteria for mild mental
retardation, three did not. Georgia requires intellectual disability to
be proved beyond a reasonable doubt — an arguably unconstitutional
standard no other state uses. Presumably it is possible to meet this
standard. Either way, Georgia courts said a four-three split was not
enough. But last year the three experts against Mr. Hill recanted. Seven
to zero sounds like a winner, but it didn’t matter, a federal appeals
court said, since Mr. Hill was blocked by another law that strictly
limits multiple appeals on the same claim.

So Mr. Hill filed a direct appeal to the Supreme Court — a rare request
the court even more rarely grants — asking it to order the lower courts
to weigh the new evidence. On Sept. 30, the court will consider whether
to hear Mr. Hill’s petition. It has been reluctant in the past to
exercise this power, but this case is exceptional. At stake is not only a
man’s life, but the court’s own authority, which continues to be
skirted by states like Georgia and Texas, where the 2002 ruling on
intellectual disability is similarly subverted by an unscientific standard.

Because it has a specific meaning with respect to capital cases, I continue to use the older term on the website. More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Tuesday, 13 August 2013

Arizona Attorney General Tom Horne turned to a federal court Monday
in an effort to get an answer from the U.S. Department of Justice on
whether Arizona can speed up work on death-penalty cases brought against
indigent defendants.

The suit, filed in the U.S. District Court in Washington, D.C.,
reflects Horne’s impatience with what he sees as federal foot-dragging.
Horne had set a mid-July deadline for a definitive response from the
Justice Department, and with that date past, is asking a court to review
the federal agency’s position on the matter.

In a July 16 letter, the Justice Department said it expected a final
rule “in the near future” on allowing states to opt in to accelerated
processing of death-penalty cases, meaning a shorter time between an
indigent defendants’ guilty verdict and execution. However, the letter
said it could not provide a precise date.

And:

Arizona years ago changed its death-penalty procedures to allow for a
faster turnaround time between the verdict and the death penalty. But
those procedures must be approved by a federal rule. The Obama
administration scrapped the rule the Bush administration was working on
and began its own process, which is still under way.

Arizona's attorney general, hoping to speed up appeals in death-penalty cases, sued the federal government Monday for allegedly delaying a decision on whether the state can expedite the process.

Notice of the suit, filed in federal appeals court in Washington Monday, comes after Arizona amended its capital-case procedures to meet congressional requirements passed more than four years ago allowing some states "accelerated status" in death-penalty appeals.

The U.S. Justice Department's "failure to act has deprived [Arizona] of the benefits Congress intended in the form of streamlined procedures," a statement from Arizona Attorney General Tom Horne's office said.

The Obama administration is working on rules for how states must comply with the congressional requirements and is expected to publish the rules soon. "We continue to make progress on the rule-making," a Justice Department official wrote to Mr. Horne in a July 16 letter. The letter said the Justice Department is also reviewing Arizona's request for accelerated status. The Justice Department didn't immediately respond to a request for comment.

And:

Dale Baich, supervisor of the capital-case unit for the federal public defender's office in Arizona, said the lawsuit could cause more delays "as the legal challenge will have to be untangled in the courts."

Accelerated status would require that the federal district court take action on a case within 450 days and the court of appeals respond within 120 days of the filing of the last reply brief, according to the state Attorney General's office.

Arizona amended its capital case procedures years ago to meet
Congress’s requirements for accelerated status, but the Justice
Department’s failure to act has deprived the State of the benefits
Congress intended in the form of streamlined procedures.

Statistics indicate that the average delay between verdict and
execution in capital cases in the Ninth Circuit (The Federal Court of
Appeals that covers Arizona) is an average of 18 years. Acceleration
status would require that the Federal District Court act within 450
days, and the Court of Appeals act within 120 days of the filing of the
last reply brief. This could shave approximately 10 years off the delay.

In 1963, the Supreme Court ruled in Gideon v. Wainwright that all
defendants facing serious crimes are entitled to a lawyer. For more than
eleven years, I have proudly worked for the Federal Public Defender
program, an organization founded by Congress to fulfill this
constitutional mandate.

This afternoon, I will testify before members of the Senate about the
threat that sequestration poses to the survival of the Federal Defender
system. It is a bitter irony that, exactly fifty years after Gideon,
budget cuts threaten to destroy a program regarded as the flagship of
indigent defense in this country. It is equally ironic that these cuts
will end up costing the taxpayer more money than they save.

Public defenders and their advocates told a Senate panel Tuesday that
the budget cuts known as sequestration are taking heavy toll on legal
representation for the poor, causing delays and lengthy furloughs that
could worsen next year.

“We are cutting ourselves to the bone,” Michael S. Nachmanoff,
Federal Public Defender for the Eastern District of Virginia, told a
subcommittee of the Judiciary Committee, which held a hearing on the effects of sequestration on the federal court system.

“We are on the verge of being crippled, and we’re a model of quality and efficiency, ” he said.

Federal defenders already were facing a 5 percent budget reduction
when $85 billion in spending cuts began coursing through federal
agencies in March, lopping another 5 percent from the budget this fiscal
year. Some courts have limited the hours they hear criminal matters.
Defenders across the country are taking up to 15 days without pay,
forcing postponements in many criminal proceedings.

While the U.S. District Courts, federal marshals and U.S. attorneys
were spared furloughs because the Justice Department was able to shift
money into the accounts that pay their salaries, the defenders are paid
from a different pot of money and got no such reprieve.

It's roughly 164 miles from Lubbock, Texas, to Abilene; not the
furthest drive you can do in the Lone Star State but still a bit of a
haul. On a good day, you can make the trip in about three hours, which
is what Helen Liggett discovered in April when she had to visit a client
in the Taylor County Jail.

Liggett is an assistant federal public defender for the Northern
District of Texas, based in Lubbock. Her client Leroy Gream had been
caught on camera loading an ATM onto a cart and attempting to steal it
from Hendrick Memorial Hospital in Abilene on Christmas Day of last
year. Gream, 55, pleaded guilty to bank theft, a charge that carries a
maximum penalty of 10 years in prison and a $250,000 fine. But like most
people who try to steal an ATM, he didn't have the money to pay for his
defense. Liggett was assigned to his case.

On April 8, she drove to Abilene to attend Gream's arraignment at the
federal courthouse, which was scheduled for the next day. On May 8, she
went back for his interview with the United States probation office in
preparation for his pre-sentencing report.

In each instance, Liggett chose to pay for the trip -- $185 for gas
and a hotel room -- out of her own pocket. It was either that or not
visit her client at all. The budget cuts brought on by sequestration
wiped out any travel budget her office had.

In an age of across-the-board budget reductions, Liggett forewent all
travel reimbursements for March, April and May. She began buying her
own pens and copy paper. She's also been furloughed one day a week and
has occasionally taken on the furlough days of her lesser-paid secretary
and paralegal. There used to be eight people in her office, but in late
June, her boss said that they would have to make due with three.

State officials have rescheduled the execution of Georgia death row inmate Warren Lee Hill for Friday.

Hill was originally scheduled to be executed on Monday, but a Fulton
County judge issued a temporary stay so she could consider a legal
challenge filed by Hill’s attorneys. Hill is challenging a new state law
prohibiting the release of certain information related to Georgia’s
supply of lethal injection drugs.

A hearing on that issue has been scheduled for Thursday morning.

Separately, Hill’s attorneys have appealed to the U.S. Supreme Court
to halt the execution, arguing Hill is mentally disabled and should not
be put to death.

This stay, rather, is about a recently enacted Georgia law that
classifies the identities of companies that manufacture, prescribe and
mix the execution drugs as a "confidential state secret." According to
proponents of the Lethal Injection Secrecy Law, pharmaceutical companies
making these drugs faced harassment and political pressure. As a
result, Hill's lawyers argue, the state is using "an unknown,
anonymously produced substance."

Georgia has already run into
problems. The DEA once confiscated the state's execution drug supply
after mixtures not approved by the FDA were used for two executions that
witnesses say involved "significant pain and suffering."

According
to the Atlanta Journal-Constitution, the state attorney general's
office released a document from an ostensibly independent lab that
claims Georgia's current lethal injection mix passes muster.

The name of the lab, along with other identifying information about the tests, was redacted.

This
issue ought to concern capital punishment's proponents at least as much
as, and perhaps even more than, it concerns those unalterably opposed
to the death penalty. If secrecy surrounding the integrity of Georgia's
execution process opens the door for more "cruel and unusual punishment"
defenses, the already slow course of capital cases could become
positively glacial.

And:

The larger issue here is not Warren Hill's rights, but ours. When the
state conducts legally sanctioned executions in the name of The People
we deserve the legal right, and bear the moral responsibility, to know
the who and the how as well as the why.

Huffington Post Live has an excellent segment, "The Sad State Of Habeas Corpus," hosted by Mike Sacks. It's available in archived streaming video at the link. It's a must-watch. It features one of our finest legal analysts, Andrew Cohen, and law professors Lee Kovarsky, Martha Rayner, and Steve Vladeck.

Hours before Warren Lee Hill, Jr., was scheduled to be put to death
on Monday, a Georgia state court judge temporarily halted his execution
in order to ensure that the drugs Georgia uses as part of its lethal
injection protocol—and the way the state obtained them—are legal. In the
process, Judge Gail Tusan didn’t just provide a reprieve to Hill, but
also to the U.S. Supreme Court, for which Hill’s death sentence poses a
constitutional question the significance of which goes far beyond his
case. And as with Hill’s reprieve, the Supreme Court’s absolution is
likely to be temporary, at best.

Hill is not an innocent man. His capital sentence arises from his
1990 killing of a fellow prisoner while serving a life sentence for the
murder of his girlfriend. In a country in which 32 states (and the
federal government) still allow capital punishment, Hill might seem an
unlikely candidate to become anything other than a statistic: But for
Monday’s stay, he would have been the 19th prisoner to be subjected to
capital punishment within the United States in 2013, and the 1,339th
since the Supreme Court ended its self-imposed moratorium on the death
penalty in 1976.

But if Hill’s execution is eventually carried out, it will set a very
dangerous precedent—even for those who are not generally opposed to
capital punishment. Hill is, by all accounts, mentally retarded (the
pejorative term still in vogue in legal analysis).

Thursday, 11 July 2013

The National Law Journal posts, "Warren Lee Hill's — and the Supreme Court's—Last Chance." It's written by Stephen I. Vladeck and James Liebman. Vladeck is at the American University Washington College of Law; Liebman is at Columbia University. They co-authored an amicus brief filed with the U.S. Supreme Court on behalf of a group of law professors.

Here's the beginning of this must-read:

In its 1996 decision in Felker v. Turpin,
the U.S. Supreme Court saved Congress from itself, relying on creative
legal reasoning to hold that some of the key provisions of the
Antiterrorism and Effective Death Penalty Act (AEDPA) did not actually
raise the serious constitutional questions that they appeared to
present. As Felker held, although Congress had meant to
foreclose state and federal prisoners from filing most
“second-or-successive” habeas petitions (including in some cases in
which they had an indisputable claim for relief), that constraint only
applied to the lower courts. Appearances to the contrary
notwithstanding, Felker held, Congress had left intact the
Supreme Court’s ancient authority to entertain “original” habeas
applications in such cases, i.e., habeas petitions filed initially in
the Supreme Court, a practice blessed by Chief Justice John Marshall as
early as 1807. Because review of a prisoner’s constitutional claims
remained available in at least one judicial forum, Felker
ruled, the AEDPA did not implicate either the prisoner’s constitutional
right to judicial review or the role of the federal courts as the
ultimate arbiters of the Constitution.

As should be clear, Felker’s
reasoning works only if the Supreme Court actually exercises its
original habeas jurisdiction in appropriate cases. Otherwise, there will
be cases in which there is no judicial forum available in which to
adjudicate the legality of the state’s taking of liberty and life—the
very condition that Felker held to be constitutionally intolerable.

According to the Supreme Court’s rules, its exercise of original
jurisdiction requires “exceptional circumstances warrant[ing] the
exercise of the Court’s discretionary powers, and…[a showing that]
adequate relief cannot be obtained in any other form or from any other
court.” If Felker means what it says, then the Supreme Court
must grant such relief in the pending case of Warren Lee Hill, Jr.—a
Georgia inmate whose execution is currently scheduled for next Monday
evening, July 15, and whose case is the rare one that clearly satisfies
both prongs of the Supreme Court’s requirements for such relief.

Georgia was the first state to outlaw the death penalty for people with
mental retardation; however, the defendant must prove it beyond
reasonable doubt, the only state to require such a high standard of
proof.

Georgia law requires a series of three tests -- an
intelligent-quotient test, adaptive-behavior test and a test during
childhood.

And:

There are many activists against Georgia’s “beyond reasonable doubt”
requirement. They want to change the law to preponderance of the
evidence, which means that it will be based on evidence that suggest
retardation instead of tests and more easily proved.

Advocates
are working at the legislature with state Rep. Rich Golick, R-Smyrna,
who chairs the Non-Civil Judiciary committee, who will have a study
session this fall to look at this issue.

Mental retardation is now generally referred to as a developmental or intellectual disability. Because it has a specific meaning with respect to capital cases, I continue to use the older term on the website.

More on Atkins v. Virginia,
the Supreme Court's 2002 ruling banning the execution of those with
mental retardation, is via Oyez. Related posts are in the mental retardation category index.

It is altogether fitting that Texas, a state where some of the worst
of these transgressions have taken place, is confronting part of its
unconstitutional past the same week America commemorates the 50th anniversary of the Brady ruling, which came down unanimously from the high court on May 13, 1963. The Morton Act, which now awaits Gov. Rick Perry’s signature
after passage in both houses of the Texas legislature, is a bold,
progressive step that creates an “open-file” discovery rule requiring
prosecutors to share more information more quickly with defense
attorneys.

The new law means prosecutors now have an affirmative duty under state law to comply with Brady
by making sure defendants and their lawyers can see and copy all police
reports and witness statements. Prosecutors will be able to protect the
identity of witnesses — which always has been a sticking point in these
measures — but will have to provide defense counsel with a list of the
disclosed evidence. In other words, Texas now has taken a significant
step toward giving its criminal defendants, whose life or liberty are on
the line, many of the same discovery protections routinely afforded
litigants in state court civil cases, where neither life nor liberty are
at stake.

It’s about time. Morton spent 25 years in prison for the murder of
his wife before a DNA test exonerated him just a few years ago. The
behavior of his prosecutor, Ken Anderson, was so egregious that Anderson
himself now faces criminal charges
of tampering with evidence. Michael Toney also spent nearly 25 years in
a Texas prison because his prosecutors suppressed evidence about the
credibility of the only witnesses to testify directly against him.
Anthony Graves was relatively lucky — he spent just 18 years behind bars for a crime he did not commit.

The Morton Act will require prosecutors to play more fairly in criminal trials. And a related measure, Senate Bill 825,
also passed by the Texas House this week, addresses what will happen
when they don’t. This measure will give aggrieved criminal defendants
more time to challenge prosecutorial errors once they are discovered.
And, critically, it will publicly reprimand prosecutors who cheat. I’d
like to see harsher sanctions in these cases — more teeth to the measure
— but if the new law is faithfully observed by state court judges no
longer will the legal community in a particular jurisdiction be able to close ranks around district attorneys who violate the law.

Cohen's essay was written before Governor Perry signed the measure into law.

It appears the third time filed is the charm for a bill that allows
defendants to challenge their criminal convictions based on the state's
use at trial of junk or outdated science – but will it actually cure the
problem it seeks to address?

The Texas House Thursday morning unanimously passed Senate Bill 344, by Sen. John Whitmire, D-Houston, queueing up the bill for Gov. Rick Perry's signature, but whether it will have any bite to it is unclear.

As passed, the measure tells the Court of Criminal Appeals how
to consider scientific evidence challenged in writs of habeas corpus –
an issue that, aside from those cases involving DNA, remains a source of
some uncertainty and tension – including in cases that involve pure
junk, like dog scent-lineups, or cases that involve more evolved scientific understanding, as with the now discredited trifecta of "symptoms" once considered the hallmark of so-called "shaken baby syndrome."

As the law had to be changed in order to allow the CCA to consider
appeals specifically citing DNA evidence, so too SB 344 amends habeas
law to allow the court to grant relief where sufficient facts
demonstrate that relevant, and admissible, scientific evidence
contradicts that which the state used to convict, or that was
unavailable at the time the defendant was convicted. The bill also
prohibits the court from denying relief based on the fact that a
defendant either confessed to the crime or took a plea deal.

Thursday, 16 May 2013

According to the state of Texas, on Dec. 17, 1999, Robert Pruett, 20, took a sharpened metal rod wrapped with tape and stabbed prison guard Daniel Nagle
eight times, prompting a heart attack that killed the guard. Pruett
then took a disciplinary complaint that Nagle had just written
concerning Pruett's behavior that afternoon – he'd tried to take a sack
lunch in the recreation yard, a violation of rules – and tore it up,
discarding the pieces next to the guard's body.

At the time of Nagle's death, Pruett was already serving a 99-year
sentence in the Texas Department of Criminal Justice's McCon­nell Unit
in Beeville for murder; at 16 he'd been certified to stand trial as an
adult for his role in the beating and stabbing death by Pruett's father
of a neighbor in the Harris County trailer park where they lived. Given
his record, it's little wonder that a jury in 2002 sentenced Pruett to
die for Nagle's murder.

But his execution, initially slated for May 21, last week was postponed
for 60 days pending the outcome of agreed-to DNA testing that could
demonstrate Pruett was not responsible for Nagle's death. Pruett has
maintained his innocence, and his lawyer, David Dow, founder and co-director of the Texas Innocence Network
at the University of Houston Law Center, is seeking to test pieces of
the ripped-up disciplinary form to see if Pruett's DNA, or that of
someone else, is on the paper. "DNA testing could corroborate [Pruett's]
claim of innocence while also identifying the actual perpetrator of the
murder," Dow wrote in a motion filed May 9. He notes that a palm print
found on the paper was not a match to Pruett, and blood found on the
pieces matched Nagle and "no other DNA profiles were developed from the
report," he wrote.

A state district judge has put off next week's scheduled
execution of a Texas inmate condemned for the slaying of a corrections
officer at a South Texas prison in 1999.

Robert Pruett faced lethal injection May 21 for the fatal
stabbing of Dan Nagle, a corrections officer at the McConnell Unit
prison near Beeville. Attorneys for Pruett want additional DNA testing
in his case. Prosecutors agreed to a 60-day delay.

State District Judge Ronald Yeager in Bee County
on Tuesday formally withdrew next week's execution date. The judge also
set a hearing for June 3 to address questions about the forensic testing
and a new execution setting.

Monday, 22 April 2013

Arizona Attorney General Tom Horne is threatening to sue the Obama
administration over delays in habeas corpus proceedings that he says
routinely and unnecessarily prolong the death penalty from being carried
out in the state.

Horne contends that Arizona qualifies for expedited federal habeas
corpus, a writ ordering a person in custody to be brought before a
court, because its system for appointing defense counsel meets criteria
set in federal law. But some legal experts say Horne’s timing is off and
his argument ill-founded because the Department of Justice has yet to
create a mechanism to determine a state’s eligibility.

In a letter issued Thursday, Horne gave U.S. Attorney General Eric
Holder a 90-day deadline to respond to his request that Arizona be
certified to take advantage of expedited federal review of capital cases
as guaranteed in the Antiterrorism and Effective Death Penalty Act of
1996.

The act was designed in part to streamline federal appeals for
convicted criminals sentenced to death. The expedited review is eligible
to states that provide qualified, well-compensated attorneys to
death-row inmates moving through the appeals process.

And:

Dale A. Baich, an assistant federal public defender who represents
death-row prisoners in federal habeas corpus proceedings, said the cases
deserve careful attention from the courts. “These cases are very
complex and very serious, and the federal courts need to give each case
the consideration that’s due,” Baich said.

Arizona Attorney General Tom Horne announced Thursday that he plans
to sue the Federal Government if they don’t expedite their handling of
capital cases.

Horne said he will file a lawsuit if the government doesn’t approve
within 90 days Arizona’s application to qualify for expedited review of
capital cases.

Horne notes that it’s important to not force the families of victims to suffer while they wait for justice to be done.

“The studies show that families suffer from something like Post
Traumatic Stress Syndrome, and can heal faster if they see justice done
within a reasonable period of time,” said Horne. “If they are victimized
a second time by endless delays in the Federal Courts, that adds to
their pain.”

Horne points out that in the last seven capital cases Federal Habeas Corpus has delayed justice being done by 10 to 13 years.

In 2006, Congress amended the law. It took the
decision on qualification away from the courts subject to the time
limits -- which have a conflict of interest -- and gave it to the
Attorney General with de novo review by Court of Appeals for the
D.C. Circuit, the one federal circuit that does not do state-prisoner
habeas cases. In addition, Congress expressly provided that the
requirements in the statute are the only requirements for
qualification. Neither the AG nor the court can make up additional
requirements. Finally, in a seemingly innocuous provision, Congress
directed the AG to "promulgate regulations to implement the
certification procedure ...." Congress did not authorize
regulations to impose additional requirements for certification,
obviously, having expressly forbidden any additions.

The Justice Department under
President Bush, preoccupied with terrorism-related issues, put the
regulations on the back burner, and did not promulgate them until that
Administration was on its way out the door. President Obama's Justice
Department rescinded them and has dithered ever since. The dithering is
not over the rules of procedure the statute actually authorizes DoJ to
make but rather over the rules of substance that Congress has forbidden
DoJ to make.

Tuesday, 05 February 2013

Advocates are backing a renewed push to streamline the appeals
process for those who were convicted based on science that has since
been discredited.

Senate Bill 344, filed Monday by state Sen. John Whitmire,
would establish a statute expressly allowing Texas courts to overturn
convictions in cases where the forensic science that originally led to
the verdict has changed. Though the bill has failed twice before,
Whitmire said that several recent Court of Criminal Appeals decisions
may make it more likely to pass, and that prosecutors who have opposed
it in the past should come around. “Why wouldn't we want to find out
there's flawed evidence based on new science?" he said.

Currently,
people convicted of a crime in Texas can submit a writ of habeas corpus
to the Court of Criminal Appeals, in which they ask for a new trial
based on evidence that was not available when they were originally
convicted. If the science used to convict them has changed, there is no
special guideline allowing the court to grant them a new trial, and the
judges often disagree about whether to do so.

Supporters of the
bill point to the history of DNA testing as an example for why the
change is needed. In 1998, the Court of Criminal Appeals denied a new
trial to Roy Criner,
then serving 99 years for a rape and murder, even though new DNA
evidence suggested that Criner was innocent. Then-Gov. George W. Bush
pardoned Criner in 2000, and in 2001, the Legislature created Chapter 64 of the Code of Criminal Procedure, which streamlined the process for new testing of DNA.

A couple of Fridays ago, Kerry Max Cook, who was released from Texas’ death row in 1997 after two decades, went to pick up his 11-year-old son, Kerry Justice, from his North Dallas school. Class was just letting out. As Mr. Cook approached a group of children and their parents, a little girl squirmed out of her mother’s arms and ran toward him. “Mr. Kerry!” she called. He laughed as she jumped into his arms. “Haleigh!” he shouted, and began tickling her. “She adores Mr. Kerry,” her mother said.

The same jolly scene followed Mr. Cook as he walked around the small campus — children calling out to him, laughing, jumping into his arms. Vicki Johnston, the school’s director, looked on, smiling. “Kerry’s such a big part of the school,” she said. “He’s like a pied piper to the kids.” Asked about his past, Ms. Johnston simply said: “We know him. We know what kind of man he is.”

Unfortunately for Mr. Cook, 15 years after his release, the State of Texas still does not share Ms. Johnston’s view. Though he is widely recognized as one of the country’s most famous exonerated prisoners, Mr. Cook is not legally exonerated. In fact, in the eyes of the state, he is still a killer — convicted of the 1977 rape and murder of Linda Jo Edwards.

Mr. Cook’s situation is complex. His death sentence was twice overturned by higher courts, and DNA taken from the victim’s underwear did not match his own, and the evidence used to convict him has been shown to be entirely fallacious — but because Mr. Cook pleaded no-contest to the murder on the eve of what would have been his fourth trial, he cannot be declared actually not guilty.

Nevertheless, Mr. Cook has become a high-profile spokesman for the wrongfully imprisoned. He has published a book about his experience and has been one of the subjects of a popular Off Broadway play, “The Exonerated,” which was later made into a film. He has given speeches all over the United States and Europe. His Facebook page contains pictures of Mr. Cook with actors like Robin Williams, Richard Dreyfuss and Ben Stiller, who have been drawn to his story.

Yet Mr. Cook lives in the shadows with his wife and their son, knowing that whenever he applies for a job or gets on an international flight, he will be identified as a convicted murderer. Now he hopes to change that, with two motions filed recently in Smith County, where the case was originally heard, that could finally clear his name.

And:

In 2009 Mr. Cook met Marc McPeak, a civil lawyer — with Greenberg Traurig in Dallas — who had read his book. Mr. McPeak’s firm began devising a legal strategy, pro bono, to navigate the difficult road of getting Mr. Cook an official exoneration. The first step was to get DNA testing on other items from the crime scene, including a hair found on Ms. Edwards’s body.

On Feb. 28, Mr. McPeak filed two motions in Smith County, one for the DNA testing and the other to recuse the judge who would decide whether to allow the testing — Mr. Skeen, the former district attorney. “We want it heard outside of Smith County,” Mr. McPeak said. “Not once in 35 years have officials there shown either the desire or the ability to treat Kerry fairly.”

They hope that further DNA evidence excluding Mr. Cook will help them to file a writ of habeas corpus to have him declared actually innocent.

Legislation to expand the death penalty in Virginia is up for a key vote at the General Assembly.

The Republican-backed bill would redefine the so-called triggerman rule, which in most cases restricts the death penalty to the person who does the actual killing. The bill would allow the death penalty for accomplices who share the intent to kill.

Two weeks ago, the Senate's own version of the bill died in the courts committee on a 7-7 party line vote, with one Republican abstaining because he accepts court appointments to represent capital murder defendants. The same vote on the House bill would doom the triggerman revision for the fifth consecutive year.

Tuesday, 14 February 2012

An Alabama death row inmate's attorneys came to the federal appeals court in Atlanta on Monday with a ream of new evidence they say helps exonerate their client. But the three-judge panel was more than a little skeptical about the arguments.

Billy Kuenzel was convicted of the November 1987 murder of Linda Jean Offord, a convenience store clerk in Sylacauga, Ala., and sentenced to die a year later. The 49-year-old refused to take a plea deal and has long maintained his innocence, and his attorneys say they uncovered new evidence in 2010 that backs his claim.

That's where they run into a legal roadblock. Prosecutors insist Kuenzel had a fair trial, and say the new information isn't enough to prove his "actual innocence," a stringent legal standard. Kuenzel's attorneys, though, asked the 11th U.S. Circuit Court of Appeals to give them a chance to "salvage what time remains of his life."

All three judges on the panel on Monday did little to boost Kuenzel's hopes.

Circuit Judge J.L. Edmondson raised concerns about whether Kuenzel missed key deadlines to file the appeal, and said "it's close to impossible" to overturn a federal judge's ruling against his client. And Chief Judge Joel Dubina suggested the new details wouldn't be enough to change any juror's mind.

"The jury heard all of this, weighed all the evidence, chose who to believe, and found against your client," Dubina said.

Defense attorney David Kochman quickly responded: "Respectfully, the jury did not hear all the evidence."

Kochman said Kuenzel's case is unlike no other, largely because his initial post-conviction appeal was found to have been filed six months too late, which has barred the introduction of newly discovered evidence.

In the meantime, Kuenzel's lawyers have uncovered grand jury testimony that throws into question the trial testimony of a key state witness and have learned that Venn, shortly before Offord's killing, may have borrowed a .16-gauge shotgun -- the kind used to kill Offord -- from a man who later told his wife he was worried the shotgun may have been the murder weapon.

Innocence claims such as those raised by Troy Anthony Davis, executed last year in the killing of a Savannah police officer, face enormous legal hurdles. Davis, after being denied a hearing for years, was finally granted one through an extraordinary ruling by the U.S. Supreme Court. Even then, a judge rejected his case.

In 1995, the U.S. Supreme Court said condemned inmates asserting their actual innocence have to show "it is more likely than not that no reasonable juror would have found [the inmate] guilty beyond a reasonable doubt." Such inmates must support their innocence claims "with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts or critical physical evidence -- that was not presented at trial."

On Monday, all three appellate judges indicated Kuenzel had not cleared such a threshold.

Friday, 10 February 2012

Utah death row inmate Michael Archuleta has chosen the firing squad to carry out his April 5 death sentence for a 1988 murder.

Utah Attorney General Mark Shurtleff says the state won’t oppose it.

Archuleta was sentenced to death for the Nov. 22, 1988, murder of Southern Utah University student Gordon Ray Church, 28.

At his original conviction he chose lethal injection, but changed his mind and opted for the firing squad in 1994. Even though the state did away with the firing squad in 2004, Shurtleff says Archuleta made his choice before the law changed, so it will stand.

“The courts have held that the method of execution is the choice, if there is a choice … of the condemned person,” Shurtleff said.

Archuleta can change his mind and say he no longer wants the firing squad, but if he insists on the firing squad, Shurtleff says the state won’t oppose it and that’s how he’d be executed.

There are four other death row inmates who opted for the firing squad before the law changed.

And:

Convicted killer Ronnie Lee Gardner was the last person executed in Utah by firing squad. Gardner had been on Utah's death row since October 1985 and was executed on June 18, 2010. He was the third person executed by firing squad in Utah — or anywhere else in the U.S. — since the death penalty was reinstated in 1976.

A judge on Wednesday signed a death warrant for Michael Anthony Archuleta, for now at least setting the course for his execution by firing squad on April 5.

The signing by 4th District Judge Donald Eyre, however, is the third time a judge has set an execution date for Archuleta, 49, who has been on Utah’s death row since being convicted in December 1989.

Archuleta’s family, who was at the hearing, wept as the judge assigned the date.

"For a while you kind of just go with the flow but when things like this happen, it all comes back and opens up all the wounds. It’s hard,"said Archuleta’s mother, Stella Archuleta after the hearing, adding that her son has a lot of regrets. "It doesn’t just affect him and the victim’s parents, it affects everyone who cares about him."

Archuleta’s attorney, James Slavens said his client still has appeal options. While the state appeals have all been exhausted, he has yet to begun his federal review, Slavens said.

After the hearing Assistant Attorney General Thomas Brunker appeared to echo Slavens, saying he didn’t think it was likely that Archuleta’s execution will proceed in April.

Wednesday, 01 February 2012

After refusing for years to challenge his execution, condemned killer Nicholas Cody Tate on Tuesday changed his mind just hours before he was to be put to death.

And:

After the Georgia Supreme Court upheld the death sentence in Tate's automatic direct appeal, which is required in all capital cases, Tate said he wished to file no further appeal, which are routine in most all death-penalty cases and, on occasion, result in new trials.

During one hearing, Tate told a judge he had been caught "red handed" and that none of his rights had been violated. "I choose to waive any and all future appeals," Tate said.

Last week, as the execution neared, Tate's brother sought to file an appeal on Tate's behalf. But that was abandoned after psychiatrists examined Tate and found he was competent to decide on his own to forgo his final appeals.

A judge halted the execution of a Georgia man less than an hour before he was set to die for the 2001 murders of a woman and her 3-year-old daughter, acting after the inmate signaled he would file a new round of appeals.

Butts County Superior Court Judge Thomas Wilson postponed Nicholas Cody Tate's execution until further notice about 45 minutes before Tate was scheduled to receive a lethal injection at the state prison in Jackson on Tuesday evening for the murders of Chrissie Williams and her daughter Katelyn. It's unclear how long his execution would be delayed, but it often takes this type of appeal years to work through the court system.

Tate, who had been scheduled to die on his birthday, declined a special last meal. He would have been the 35th person Georgia has executed by lethal injection.

Tate's execution would also have been the third in the United States this year, following Rodrigo Hernandez in Texas and Gary Welch in Oklahoma, according to the Death Penalty Information Center. Last year, 43 people were executed.

Thirty-four U.S. states currently have the death penalty, the center said.

Monday, 23 January 2012

South Dakota’s top prosecutor has introduced Senate Bill 42, an attempt to curb what he calls frivolous and repetitive delays at the back end of the state’s criminal justice system. Patterned after similar federal law, Jackley’s bill puts a cap on how often indigent defendants can argue that their court-appointed lawyers are ineffective, and the time frame in which they can make that claim.

It is legislation, defense lawyers and law professors counter, that is an assault on individual constitutional rights.

Jackley’s bill passed 5-1 out of the Judiciary Committee after it was amended to give defendants two years after their direct appeal to the state Supreme Court to argue ineffective counsel and make other claims. Jackley first had wanted the statute of limitation at one year, as it is at the federal level. The proposal also was amended to allow claims to be made after two years if new evidence arises or if changes to constitutional law would affect the conviction and sentence.

It now goes to the full state Senate.

And:

While defense lawyers seem amenable to improvements, they’re not lining up yet behind this proposal, said Lindsey Riter-Rapp, a Pierre lawyer and lobbyist for the state Association of Criminal Defense Lawyers.

Riter-Rapp said her group could accept a two-year period for habeus corpus action, which is the same amount of time defendants have to come in after they have been convicted and ask for a modification of their sentence.

Defense lawyers also were glad to see protections added to the proposal to allow for a habeas action to come after the two-year period if new evidence arises, or if a Supreme Court ruling changes a law affecting a defendant’s case.

But Riter-Rapp and others are particularly troubled by Jackley’s insistence on limiting defendants to one habeas action questioning the effectiveness of their trial or appellate lawyers. They’re also bothered by language that gives judges discretion in deciding whether to appoint counsel for a post-conviction claim.

Donald E. Wilkes Jr., a professor at the University of Georgia School of Law for 40 years and author of five books on post-conviction remedies, said more than 30 states have enacted similar time restraints since the federal law was enacted in 1996. But few states are removing a statutory right to counsel in post-conviction proceedings as Jackley is seeking.

More information on Senate Bill 42 is available from the South Dakota Legislature website.

Nicholas Cody Tate could delay his execution at the end of this month for years if he filed a new round of appeals. But his refusal to do so has made his death sentence for the murders of two people one of the fastest-moving in recent memory in Georgia.

In the glacial-paced world of death penalty law, Tate’s death sentence for the 2001 killings of a woman and her 3-year-old daughter moved through the appeals process quickly. That’s because he refused to challenge his conviction and sentence by filing a habeas appeal in state or federal court.

His current and former attorneys won’t comment on why Tate, who is 31, won’t let them file the appeal. But the transcript from a 2009 court hearing helps illuminate his thoughts on the process.

“You caught me red-handed,” he said during the hearing, when he waived his motion for a new trial. “None of my rights were violated ... I choose to waive any and all future appeals.”

A Paulding County judge last week cleared the way for his execution, and state officials on Tuesday scheduled the lethal injection for Jan. 31 at 7 p.m. Death penalty opponents say Tate’s case highlights the problems with capital punishment.

“The appeals process exists as a safeguard to protect the integrity of the judicial process,” said Kathryn Hamoudah, who chairs Georgians for Alternatives to the Death Penalty. “Proceeding without is tantamount to allowing state assisted suicide.”

The Georgia Department of Corrections has set a Jan. 31 execution date for Nicholas Cody Tate, who killed a Paulding County woman and her daughter in 2001.

Tate is to be put to death by lethal injection at 7:00 p.m. at the Georgia Diagnostic and Classification Prison in Jackson.

And:

Tate pleaded guilty to the murders in 2005 and waived a trial by jury. After a sentencing hearing, the trial judge sentenced Tate to death. Tate's case is highly unusual in that he has not challenged his conviction and sentence through a petition of habeas corpus in either state or federal court.

Attorney General Marty Jackley wants to rein in criminal cases that drag on for years with appeals and cost taxpayers hundreds of thousands of dollars.

The state’s top prosecutor is pushing Senate Bill 42, which would curtail what he calls frivolous and repetitive filings by people after they have been convicted, sentenced for their crimes and have made their direct appeal of those actions to the state Supreme Court.

A person convicted of murder can argue on direct appeal to the Supreme Court that his lawyer was ineffective, but shouldn’t be able make that claim on every lawyer that represents him afterward, Jackley said. His office is proposing a one-year statute of limitations on state court appeals after the direct review. It wants the court to be able to decide whether a defense lawyer has to be appointed on every appeals claim. And it wants to limit repetitive proceedings.

The bill gets its first hearing at 8 a.m. today before the Senate Judiciary Committee in Pierre.

“What we’re proposing is modeled after current existing federal law,” Jackley said. “The reason that’s important is, there’s no way there could be constitutional challenges to what we do because that’s what the feds do. It really comes down to two things. ... you have to file your appeals in one year, and you can’t do repeat fillings.”

His office has met with officials representing the South Dakota Association of Criminal Defense Lawyers to see whether they can agree on tweaks and amendments that would make the legislation more palatable. Lindsey Riter-Rapp, a Pierre lawyer and lobbyist representing defense lawyers, said her constituency isn’t adverse to discussing the issue, but they’re not entirely on board at this point, either.

Riter-Rapp said one of the most problematic provisions in the bill is the one-year statute of limitations for appeals after the direct review by the state Supreme Court. There is wording in the current statute that refers to a five-year timetable, she said.

More information on Senate Bill 42 is available from the South Dakota Legislature website.

Brad Levenson wasn't thrilled to watch the condemned prisoner die, but he believed it was his duty to his client and to the state-funded agency he leads, charged with defending people who have been sentenced to death.

It was the first execution he'd seen.

"No matter how many pictures you see and other attorneys describing it, it's just a surreal experience," Levenson said of the lethal injection this year of convicted killer Cary Kerr.

"I was haunted by that for weeks, thinking there was something we could have done," he said. "I don't want this to sound insensitive. I needed to see an execution to do the work I do. \u2026 I had to see the start and the finish."

After years of handling death penalty cases as a federal public defender in California, which has the nation's largest death row but rarely carries out the ultimate punishment, Levenson now heads the year-old Texas Office of Capital Writs, an independent state agency tasked with scrutinizing capital murder trials to ensure that they were legally proper.

The Texas Legislature created the office two years ago after repeated instances of shoddy legal work by appeals attorneys representing capital murder convicts. The agency now handles the state appellate process for nearly all new Texas death penalty cases.

"So far, I think we are seeing the system work as we intended and hoped," said Sen. Rodney Ellis, the Democrat from Houston who sponsored the measure that created the agency. "Considering the mistakes made in Texas to date, we should pay for this safety net and pray it's adequate enough to get the job done right."

More than a dozen states have similar operations, but Texas was the largest without a public office to address death penalty appeals. None of the other states with capital punishment executes people as frequently as Texas.

The primary method of getting a new trial following a criminal conviction is to file a habeas appeal, which argues that a major legal mistake was made during the first trial. In Texas, courts generally will hear only one habeas appeal, and attorneys should raise claims early, as the cases wind through the judicial system.

Andrea Marsh, executive director of the Texas Fair Defense Project, a group that works to improve legal help for poor Texans accused of crimes, said the role of habeas attorneys is crucial.

Friday, 19 August 2011

A visiting judge for the 171st Judicial District Court has ruled against convicted serial killer David Leonard Wood's petition involving DNA test results.

Wood, who received a stay of execution two years ago, had expanded his death penalty appeal to include a petition for a new finding of his 1992 conviction.

He requested, and was granted, new DNA tests of items from 1987 victims of the notorious desert deaths in Northeast El Paso.

"The court finds that the results of the DNA analysis do not establish that, had the results been available during the trial of offense, it is reasonably probable that (Wood) would not have been convicted," according to Judge Bert Richardson's ruling dated Aug. 17.

According to court records, prosecutors did not rely on DNA evidence to try Wood.

And:

A separate hearing has not been set to determine whether Wood meets the legal threshold of mental retardation.

Thursday, 11 August 2011

A visiting judge is expected to rule today on whether DNA test results would have made a difference in the conviction of David Leonard Wood had they been presented during his 1992 jury trial.

A Dallas jury convicted Wood in the murders of six teenage girls and young women whose bodies were found buried in the Northeast El Paso desert. The same jury sentenced Wood to death, but his execution was postponed two years ago after his defense attorneys claimed he was mentally disabled.

During a hearing that started Tuesday and ended Wednesday, Wood's attorneys claimed DNA evidence found on a yellow sundress belonging to victim Dawn Smith matched her and the DNA of an unknown man. Two other tests on evidence belonging to victims Rosa Casio and Angelica Frausto were deemed inconclusive.

Visiting Judge Bert Richardson of San Antonio said he would make his ruling today and notify the Austin-based attorneys on both sides by next week.

Also on Wednesday, Richardson tentatively scheduled a hearing in October to determine whether Wood is mentally disabled. That hearing is expected to take less than a week and may include testimony from those familiar with Wood.

At the October hearing, attorneys may also discuss a potential request from defense attorney Gregory Wiercioch to test additional evidence, including up to 100 items, for DNA.

However, Assistant Attorney General Georgette Oden argued in court that many of those items may now be unable to be tested because of deterioration over time.

Wednesday, 10 August 2011

Attorneys for convicted serial killer David Leonard Wood argued Tuesday that Wood is innocent in the deaths of six girls and women because recently conducted DNA tests were inconclusive or did not match his DNA.

A Dallas jury in 1992 convicted Wood of the murders of six teenage girls and young women whose bodies were found buried in the Northeast El Paso desert. All of them died in 1987 after Wood was paroled from prison for the second time on sex-assault convictions.

The same jury sentenced Wood to death.

Wood's execution was postponed two years ago after defense attorneys claimed Wood is mentally disabled. In 2002, the U.S. Supreme Court ruled that the death penalty should not be applied to mentally disabled people because it violates the Constitution.

But during a court hearing Tuesday, defense attorney Gregory Wiercioch of the Texas Defender Service argued that DNA evidence found on a yellow swimsuit belonging to victim Dawn Smith matched her and an unknown man. Two other tests, conducted on a piece of a blue-green blouse belonging to victim Rosa Casio and a fingernail belonging to victim Angelica Frausto proved inconclusive.

Wiercioch also argued the DNA tests may have proved Wood's innocence if they had been presented during his jury trial, which may be the basis for a new trial.

Visiting District Judge Bert Richardson of San Antonio may make a decision today on whether the DNA tests would have made a difference.

Convicted serial killer David Leonard Wood has expanded his death penalty appeal to also having his 1992 capital murder verdict overturned.

Several records in his file that previously were unsealed show that he requested an expert review of DNA evidence from his trial, and for his investigators to interview witnesses and collect documents to prove that he is mentally retarded.

Wood will have a hearing Tuesday in the 171st District Court to determine his fate. He is expected to be present for the proceeding.

The Texas Criminal Court of Appeals granted Wood a stay of execution two years ago, a day before he was set to be executed by lethal injection.

And:

He also asked for forensic DNA testing of items pertaining to several of the 1987 victims, Frausto, Casio and Smith, as well as documents related to Salvador Martinez and Edward Dean Barton.

Martinez, an acquaintance of Wood's, did not pass a 1987 polygraph test about the disappearances and murders of young women in El Paso.

Barton, who resembled Wood, told the FBI in 1989 that he killed four women in the El Paso area between May and December 1987.

Fifteen years ago last month, President Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which made substantial changes to federal habeas corpus law. Despite his assurance that "[f]ederal courts will interpret these provisions to preserve independent review of federal legal claims," we have witnessed the evisceration of habeas in the intervening years, making justice substantially more difficult to obtain for those wrongfully convicted in state courts. Unfortunately, we are now hearing calls for more radical restrictions of habeas in a wrong-headed bid to address budget concerns.

Habeas corpus, expressly guaranteed by our Constitution, serves the criminal justice system as a final check to ensure justice has truly been served. Literally translated as "that you have the body," a habeas corpus challenge enables an individual held in the government's custody to challenge the legality of the detention.

The AEDPA's provisions have stymied federal courts by placing overly restrictive limits on a person's ability to have the merits of his or her case heard. Petitioners are barred by time limits that run too quickly, are overly complex and can be difficult to calculate, even for seasoned attorneys. Even more damning, the law prohibits federal courts from remedying miscarriages of justice; they are powerless to correct many of the state courts' misinterpretations of U.S. constitutional or federal law.

The net result is that the AEDPA has effectively closed federal courtrooms to prisoners with legitimate claims. This closing is all the more troubling given the failure of states to provide adequate counsel and meaningful post-conviction review in their own systems. Many states do not appoint counsel for post-conviction review, no matter how serious the prisoner's allegations or how incapable he or she is of presenting these complex and technical claims. Other states provide wholly inadequate compensation to counsel, resulting in the appointment of lawyers with little experience or incentive to commit the time necessary to fully develop their client's case. These and other hurdles make clear that the wrongfully convicted can often only find justice through federal habeas.

And:

As we reflect on the anniversary of the AEDPA and consider the injustices it has wrought, there are reforms that state and federal lawmakers could adopt to effectively reduce the need for habeas review and increase the likelihood that meritorious habeas petitions receive a full and fair hearing. First and foremost, providing effective, adequately resourced counsel for indigent defendants in the trial and appellate phases is the best chance the criminal justice system has of getting it right the first time. Passionate attorneys with the resources to investigate their clients' cases will be able to address potential problems that arise during trial. Since many habeas claims are related to ineffective assistance of counsel, this is a critical reform. Prisoners should also be appointed competent counsel for post-conviction review. Evidence shows that when petitioners are given counsel to guide them through the labyrinth of post-conviction review — as they are in capital cases — win rates go up.

Two murders in North Carolina, separated by 21 years and 50 miles, have recently been united by the ability of scientific testing to cast doubt on the convicted. In one case, handled by state authorities, a special commission helped exonerate the wrongfully convicted. The other, under federal jurisdiction, has seen courts view piecemeal claims of innocence and reject, until late last month, pleas to consider the evidence as a whole. Taken together, the two cases highlight the procedural hurdles of the federal system that serve to unacceptably hinder claims of innocence.

Dr. Jeffrey R. MacDonald, a Green Beret physician convicted in 1979 of murdering his wife and two daughters at his apartment near Fort Bragg, N.C., in 1970, asked the U.S. Court of Appeals for the 4th Circuit last March for a full review of the findings unearthed in the decades since his first trial — both the forensic evidence and the prosecutorial misconduct (resulting in suppressed evidence) that have put into question his conviction. After courts for decades examined one by one the steady trickle of exculpatory evidence — and rejected MacDonald's request for a new trial each time — the 4th Circuit on April 19 ordered the long-overdue and heretofore elusive review of the "evidence as a whole."

In stark contrast, Gregory F. Taylor, accused of murdering a prostitute in Raleigh in 1991, became the first person freed with the help of the North Carolina Innocence Inquiry Commission last year. Established in 2006 after a wave of wrongfully convicted state prisoners were exonerated by DNA evidence, the commission helped bring to light faulty blood tests and implausible testimony in Taylor's case. On Feb. 17, 2010, after spending 6,149 of his adult days behind bars, Taylor was exonerated by a three-judge panel.

Even when scientific evidence casts serious doubt on culpability, procedural roadblocks can still prolong the prison terms of the demonstrably innocent. The state of North Carolina has taken seriously this formula for injustice; the federal criminal justice system, on the other hand, has been largely immune from having its defects exposed. The 4th Circuit's ruling in U.S. v. MacDonald rolls back this immunity, marking a significant step toward fairness, and the pursuit of truth, in the federal system.

And:

Without the powerful — and, in a federal case, unusual — tool of modern DNA technology, MacDonald's post-conviction team and its amici supporters would not have gotten far enough to even earn this chance to present a full evidentiary picture to a habeas court. It is time to recognize that the federal criminal justice system is equally prone to error as are the various state systems, and to sweep aside, by both legislative and judicial fiat, the accumulated barriers to habeas corpus review of claims of factual innocence.

MacDonald should be the last prisoner — state or federal — to have to spend 32 years (and counting) in prison while dodging one procedural pitfall after another. In a society that holds itself up as free, nothing should block the presentation of overwhelming evidence not only of wrongful conviction, but of actual innocence.

Wednesday, 23 February 2011

A bill meant to streamline eyewitness identification procedures, approved Tuesday by a House committee, would bring the state a step closer to fixing a key problem with the criminal justice system, advocates said.

Under the legislation, police departments would have to adopt uniform standards for eyewitness identification.

The House Criminal Jurisprudence Committee approved the bill unanimously after hearing from criminal justice officials and emotional testimony from half a dozen exonerees from Dallas, who spent years in prison for crimes they did not commit. The measure will now go to the full House for consideration.

“This bill has special importance for Dallas County, has tremendous public interest and support,” said Rep. Will Hartnett, R-Dallas. “It deserves a head start to get it passed and out of the House.”

The exonerees made emotional appeals to lawmakers. James Giles, a Dallas man exonerated in 2007, told the lawmakers that he was picked out of a lineup and accused of rape, although he had never seen the victim before. He spent 10 years in prison and 14 years as a registered sex offender on parole.

“[The victim] picked me out of all the guys in the photo book she was given,” Giles said. “The system will work, but it takes one person to say what is right and, believe you me, everyone will follow.”

Policies for gathering eyewitness identification would have to be based on scientific research on memory, along with relevant policies and guidelines developed by the federal government and other states. Policies would have to address the selection of photographs, lineup filler photographs or participants and instruction given to witnesses. The Blackwood Law Enforcement Management Institute of Texas at Sam Houston State University would create a model policy to be distributed to local law enforcement agencies.

Texas has had 42 exonerations, 38 in cases that had been based on false eyewitness identification. The tally accelerated when the Legislature created a clear pathway for requesting DNA testing in 2001, said Edwin Colfax, a project manager at the Task Force on Indigent Defense.

Four states — Ohio , North Carolina , New Jersey and Wisconsin — have implemented legislation similar to the eyewitness identification bill.

Criminal Court of Appeals Judge Barbara Hervey, a member of an expert panel that was commissioned by the Legislature in 2009 to study the causes of wrongful convictions and make recommendations, called the bill a great step forward.

And:

Cory Session, the brother of Timothy Cole, who died in prison in 1999 and was posthumously exonerated, and for whom the panel studying wrongful convictions was named, warned that without the bill, the criminal justice system will continue to make too many mistakes.

“It is time for us to move forward and get out of the dark ages with wrongful convictions,” said Session, a policy director for the Texas Innocence Project.

He suggested enforcing a procedure used by the Dallas Police Department for identification — a sequential, double-blind lineup. In this process, the administrator does not know which participant is the suspect and presents suspects to a witness one by one.

The method has been proved more effective in other states, Session said.

The committee also discussed two other bills related to preventing convictions of the innocent. One would require law enforcement officers to record interrogations for violent, serious crimes. The other addresses writs of habeas corpus, which order that people in custody be brought before a court. The proposed measure would extend the limit for the writs filed under certain circumstances.

A Texas House committee advanced legislation Tuesday that would require law enforcement agencies to standardize the way eyewitnesses identify suspects in an effort to reduce the number of wrongful convictions.

The House Criminal Jurisprudence Committee voted to require agencies to adopt a written policy based on a model or create something similar to determine how they conduct photographic or live lineups. Currently only 12 percent of agencies in the state have written policies.

To avoid unintentionally influencing the witness, the person administering the lineup would be prohibited from knowing who the suspect in the case is. The procedures would be written based on reliable research on eyewitness memory and relevant policies developed by other governments and agencies.

Advocates say the issue is one of the most important in criminal justice, and lawmakers have long seen a need for reform in this area of the system. Texas leads the nation in the most convicts exonerated by DNA evidence, with more than 40 people released from prison since 1994.

Seven men who spent decades imprisoned for crimes they didn't commit testified before the committee in support of the legislation. They said they wouldn't have lost years of their lives behind bars if the lineup process had been conducted differently.

And:

The bill's author, Rep. Pete Gallego, D-Alpine, said mistaken eyewitness identification is the leading cause of wrongful convictions and amending the identification process is a crucial step to fixing the problem. Ohio, North Carolina, New Jersey and Wisconsin have implemented similar reform legislation.

"The idea is to establish a fairly uniform way of doing things across the state, whether in a small town or a large county, so we have some understanding of this process," Gallego said.

Gallego said if an agency doesn't comply with the law, its non-compliance could be acceptable as evidence in court but does not bar admission of the eyewitness identification testimony.

The bill grows out of recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions, named after the first Texan to be posthumously exonerated of a crime by DNA testing. Cole was wrongly convicted of a rape he did not commit in 1986 and died of complications from asthma in 1999 while serving his 25-year sentence.

The article also notes that Governor Perry has pledged to sign the bill.

The other two bills considered by the Committee, also recommended by the Timothy Cole Advisory Panel on Wrongful Convictions, are HB 219 and HB 220. Both bills are also sponsored by Gallego. HB 219 deals with electronic recording and admissibility of certain custodial interrogations. HB 220 deals is procedures for applications for writs of habeas corpus based on relevant scientific evidence. Those two bills remain in the Committee, but are likely to be voted out at its next meeting.

"The remedies sought ... are to correct the harm they suffered as a result of the state's failure to do what it promised to do: provide them with competent and conscientious counsel before executing them," according to the 51-page document filed by Jackson attorney Jim Craig and attorneys from Chicago, New York and Washington, D.C.

An injunction is sought to ensure that all prisoners sentenced to die receive competent and conscientious counsel for future proceedings.

In May, a lawsuit was filed in Hinds County Chancery Court on behalf of 16 death row inmates, including Gerald James Holland, who was facing execution.

Chancery Court Judge William Singletary dismissed the suit, citing lack of jurisdiction, and Holland was executed days later.

Court papers filed with the state high court argue that the Chancery Court erred in its decision.

And:

Glen Swartzfager, director of the Office of Capital Post Conviction Counsel, has acknowledged in court papers that some death row inmates appeals weren't adequately represented during previous administrations.

Swartzfager, who became director in 2008, was out of the office Monday and unavailable for comment.

The office was created in 2000. From the inception of the Office of Capital Post Conviction Counsel, the state set out to destroy the office's ability to provide competent and conscientious representation, the lawsuit says.

The appeal says the state:

# Failed to provide essential staff.

# Failed to provide critical funding.

# Appointed the office to represent more death-sentenced prisoners than it could competently and ethically represent at one time.

# Interfered with the performance of the duties of the director and the staff of the office.

# Failed to take corrective action once it became obvious that the office was failing to provide competent and conscientious counsel.

The original lawsuit included 16 inmates. One of the plaintiffs, Gerald James Holland, was executed May 20.

None of the remaining 15 inmates has had an execution date set through Monday.

The lawsuit claims the Mississippi Office of Capital Post-Conviction Counsel was inadequately staffed and funded and its attorneys were not versed in handling death row appeals.

The state office was created in 2000 to lift the burden off counties to pay for continuing death row appeals.

The attorney general's office will file a response to the appeal sometime later.

In the appeal, which gives only one side of the legal argument, Jackson attorney Jim Craig said the state has consistently appointed unqualified, underfunded and overburdened attorneys who cannot provide the "competent and conscientious" post-conviction counsel mandated by law.

The Office of Capital Post Conviction Counsel represents death row inmates in state post-conviction proceedings. In a post-conviction petitions, an inmate argues about new evidence – or a possible constitutional issue – that could persuade a court to order a new trial.

The inmates allege in the complaint that the Supreme Court itself has faulted MOCPCC counsel for filing petitions that are incomplete, contain misspellings and lack in key arguments and evidence.

Friday, 06 August 2010

That's the title of Adam Liptak's latest Sidebar column in the New York Times. It appeared in the Tuesday paper. LINK

Sullivan & Cromwell is a law
firm with glittering offices in a dozen cities around the world, and
some of its partners charge more than $1,000 an hour. The firm’s paying
clients, at least, demand impeccable work.

Cory R. Maples, a death row inmate in Alabama, must have been grateful
when lawyers from the firm agreed to represent him without charge. But
the assistance he got may turn out to be lethal.

When an Alabama court sent two copies of a ruling in Mr. Maples’s case
to the firm in New York, its mailroom sent them back unopened.

One envelope had “Return to Sender — Left Firm” written across the front
along with a stamp that said “Return to Sender — Attempted Not Known.”
The other was stamped with slightly different language: “Return to
Sender — Attempted Unknown.”

Two associates handling Mr. Maples’s case had indeed left the firm, but
it seems that no one bothered to tell the court or the mailroom that new
lawyers there had stepped in. By the time Mr. Maples’s mother called,
her son’s time to appeal had run out.

The firm’s name did not appear on the papers it had submitted in
Alabama. The reason for that is not clear, but it may have been to avoid
offending corporate clients. It certainly added to the confusion in the
mailroom.

Sullivan & Cromwell has worked hard to undo the damage, but it has
so far failed to persuade the courts to waive the deadline for filing an
appeal. After losing in the federal appeals court in Atlanta, the firm
persuaded a former United States solicitor general, Gregory G. Garre, to
represent Mr. Maples in the Supreme Court.

Last month, Mr. Garre asked the justices to hear the case. The core of
his argument — one that might convince a schoolchild if not a federal
judge — is that Mr. Maples should not be blamed for a mistake he did not
commit.

Variations on Mr. Garre’s argument arrive at the Supreme Court all the
time. For the most part, they are rejected, on a theory that is as
casually accepted in criminal justice as it is offensive to principles
of moral philosophy.

And:

A spokesman for Sullivan & Cromwell declined to comment on the case, citing the pending Supreme Court petition.

That petition discussed a precedent that might seem instructive.

In 2006, in Jones v. Flowers,
the Supreme Court considered what sort of notice must be given when the
government wants to sell a home for unpaid taxes. If a letter is
returned unopened, Chief Justice John G. Roberts Jr. wrote for the majority, officials must try harder to reach the owner.

“This is especially true,” he wrote, “when, as here, the subject matter
of the letter concerns such an important and irreversible prospect as
the loss of a house.”

Monday, 28 June 2010

With Texas far and away the leading practitioner of capital
punishment in the nation, criticism of the quality of defense for those
facing the ultimate punishment has steadily mounted. It focuses on the
fact that a higher percentage of poor defendants represented by
court-appointed counsel are executed than those who can afford their own
defense lawyers. A similar disparity in execution rates exists between
minorities and Anglos charged with capital murder.

In a welcome step to
provide better defense for those condemned to death by lethal injection,
Texas has hired Brad D. Levenson, currently a federal public defender
in Los Angeles, to run the state's newly created office for death row
appeals. Levenson will head up an operation with a $1 million annual
budget and a small team of lawyers.

The public defenders will assist death row
prisoners filing state writs of habeas corpus, generally the last
chance for prisoners to raise arguments related to innocence claims or
mishandling of their cases during the legal process that led to
conviction.

In an
interview with the Chronicle's Lise Olsen, Levenson said his goal is "to
represent indigent defendants as if they had private attorneys."

Tuesday, 22 June 2010

A Texas prisoner who came within a day of execution last year for a
triple slaying in Amarillo has won a court hearing to determine if his
trial lawyers' poor performance unfairly contributed to his death
sentence.

Convicted killer John Balentine is entitled to an
evidentiary hearing after his appeals lawyer argued trial attorneys
failed to develop mitigating evidence to show a jury Balentine's
childhood of poverty, domestic violence and abuse, the 5th U.S. Circuit
Court of Appeals ruled.

Balentine, 41, was condemned for the 1998
slayings of Mark Caylor Jr., 17, and 15-year-olds Kai Brooke Geyer and
Steven Watson. Caylor was the brother of Balentine's former girlfriend,
and prosecutors said the slayings capped a feud between Caylor and
Balentine.

And:

Last September, the 5th Circuit halted Balentine's punishment in a
one-paragraph order a day before he was scheduled for lethal injection.
The court's latest ruling Friday continues the reprieve and orders a
hearing to decide if there were "serious concerns that constitutionally
ineffective lawyering occurred" because of the trial lawyer's failure to
investigate evidence at the punishment phase of his 1999 trial in
Amarillo.

Balentine's current
lawyer, Lydia Brandt, who took her arguments to the 5th Circuit and won
the reprieve last year, said Monday that the evidentiary hearing would
be set before a federal judge.

In arguments as Balentine's
execution date neared, Brandt said the claims about the lack of
punishment phase evidence weren't raised earlier but had been blocked in
the state courts because of a broken system.

"The state
corrective process as a whole was ineffective," Brandt said.

Texas has hired an
experienced California attorney to run its first-ever public defense
office for death row appeals known as state writs of habeas corpus —
considered a death row defendant's best opportunity to raise final
arguments about mistakes, unheard innocence claims or misconduct.

Brad D. Levenson, now a
deputy federal public defender based in Los Angeles, will get a $1
million annual budget and small team of team of lawyers to handle a
dozen or more new death cases each year across the Lone Star State.

The office was created
by the Texas Legislature after a series of scandals generated by
ill-prepared and mostly poorly-paid death row defense lawyers assigned
to handle writs of habeas corpus across Texas. Some filed poorly written
documents filled with typos, factual errors and photocopied cookie
cutter arguments. Others repeatedly blew important deadlines –
forfeiting the rights of their clients to have any arguments considered
by either state or federal courts before executions.

Only seven candidates applied for the job, said Phil Wischkaemper, an
attorney who was one of five members of a special state selection
committee that both included judges and defense attorneys.

And:

Wischkaemper said
the selection committee unanimously supported Levenson: "We thought he
was very well-qualified - even though he doesn't have the Texas
experience," he said. Managing the complex investigations that can
result in successful writs of habeas corpus is a skill that translates
well across state lines, he said.

"The key is looking under every rock
and every bush and finding out what the lawyers at trial might have
missed because of negligence or because it was hidden from him
purposefully," said Wischkaemper.

In an interview, Levenson promised his
new office would take an aggressive approach to re-investigating all
capital cases to make sure that men and women sentenced to death in
Texas receive "high quality" representation and that relevant legal
arguments get presented to the courts before executions occur. Levenson
said his aim was to "represent indigent defendants as if they had
private attorneys."

Monday, 21 June 2010

THERE IS something disturbing and distasteful about allowing states to
take shortcuts in their quests to put convicts to death. But that is the
essence of a deal Congress struck with the states in the mid-1990s.
States that guaranteed and paid for a robust system of legal
representation for poor death-row inmates could fast-track federal
appeals of state capital-punishment convictions. To qualify, a legal
defense program had to be certified as acceptable by the federal courts.

After nearly a decade, not a single state qualified. Some in Congress
blamed the courts, arguing that judges were either imposing standards
that were impossible to meet or were blocking certification because they
objected to shortened court deadlines. In truth, the few states that
applied for the program often had the biggest death-row dockets and the
worst indigent defense systems. The courts, in other words, were right
to reject these applications.

These provisions are so lax that choosing lawyers by shoe size and
paying them with bubble gum could meet the test. In its waning days, the
Bush administration only made matters worse by issuing rules for
implementing the law that failed to provide clear and robust guidance or
standards.

The U.S. Supreme Court on Monday sympathized with a Florida death row
inmate whose lawyer missed a deadline for his habeas appeal and failed
to communicate with him for years despite numerous written pleas for
help.

By a 7-2 vote in Holland v. Florida, the Court said that the
lawyer's misconduct may entitle convicted murderer Albert Holland to
"equitable tolling," or a delay in what otherwise would have been a
one-year statute of limitation for filing the appeal under the
Antiterrorism and Effective Death Penalty Act of 1996.

The lawyer's failures, wrote Justice Stephen Breyer for the majority,
"seriously prejudiced a client who thereby lost what was likely his
single opportunity for habeas review."

The Court sent the case back to the U.S. Court of Appeals for the 11th
Circuit to determine if in fact the conduct of the lawyer, Bradley
Collins of Fort Lauderdale, Fla., was egregious enough to pause the
deadline for Holland's appeal. Collins did not return phone calls for
comment.

The decision represented a rare procedural victory for defendants under
the AEDPA that won applause from those concerned about inadequate legal
representation for death row inmates on appeal. "The Court is starting
to understand there are some very bad lawyers out there that the client
should not pay the penalty for," said Virginia Sloan, president of the
nonpartisan Constitution Project. "The fact that they have found an
exception to AEDPA is a great thing."

And:

After the U.S. Supreme Court first denied review in October 2001, the
one-year clock began to run. In November of that year, Florida appointed
Collins to represent Holland for his appeals. The following September,
Collins filed for state post-conviction relief, which stopped the clock
with only 12 days left. After that, Breyer said, relations between
lawyer and client "began to break down." Without Holland even being
aware it was happening, the Florida Supreme Court considered his case in
February 2005 and in November denied relief. Collins did not reply to
numerous letters from Holland. The federal clock resumed, and soon
Holland was out of time for the federal habeas review. Collins never
filed an appeal.

Holland filed on his own, blaming the missed deadline on his lawyer, but
both the U.S. District Court for the Southern District of Florida and
the 11th Circuit ruled that the lawyer's behavior did not amount to a
circumstance warranting tolling of the statute of limitations.

Breyer said that was too narrow a view of the AEDPA, which he said, "did
not seek to end every possible delay at all costs." Breyer said the
Court should be cautious before interpreting the AEDPA's silence on an
issue as "indicating a strong congressional intent to close courthouse
doors that a strong equitable claim would ordinarily keep open."

The question in the case was whether Mr. Collins’s conduct was
sufficient to suspend a deadline in a 1996 law limiting death penalty
litigation. The court did not decide that question, but it said the
appeals court had used too narrow a standard in saying that a lawyer’s
negligence was never enough.

Justice Alito largely agreed but said the majority had not laid down a
clear standard of its own. He suggested that the salient facts in the
case, Holland v. Florida, No. 09-5327, were Mr. Collins’s apparent
abandonment of his client and prosecutors’ insistence that only Mr.
Collins could speak for Mr. Holland.

Justice Scalia, joined by Justice Thomas, dissented. He said the court
was powerless under the Constitution to rewrite the law.

“The court’s impulse to intervene when a litigant’s lawyer has made
mistakes is understandable; the temptation to tinker with the technical
rules to achieve what appears a just result is often strong, especially
when the client faces a capital sentence,” Justice Scalia said. But he
added that “unelected judges” must resist such impulses.

The high court's decision Monday creates a little more flexibility
for prisoners and judges alike. Prompted by complaints about highly
litigious inmates, Congress in 1996 tightened various restrictions on
prisoner lawsuits. Prisoners now must file their habeas corpus petitions
within one year of their conviction and the exhaustion of all state
appeals.

A habeas corpus petition challenges the constitutional
legality of an inmate's imprisonment.

``We know that the
system is flooded with habeas petitions,'' Florida Solicitor General
Scott Makar told the Supreme Court during oral arguments.

Under
the 1996 law, the one-year habeas clock can start and stop depending on
various legal developments. The Supreme Court's ruling Monday further
modifies this, to allow what is called ``equitable tolling.'' This means
that standard deadlines can be waived when prisoners have been diligent
about pursuing their rights but have been impeded by their lawyers'
``extraordinary'' actions.

The 11th U.S. Circuit Court of
Appeals, in reviewing Holland's case, determined that filing deadlines
could not be waived even if the attorney was ``grossly negligent,''
unless the attorney also was shown to have exhibited bad faith,
dishonesty, mental illness or the like.

``In our view, the
court of appeals' standard is too rigid,'' Breyer said, adding that in
the Holland case, ``we are not considering a garden variety claim of
attorney negligence.''

The decision is a blow to Texas, Idaho, Kentucky, Washington and about
20 other states that had joined Florida in arguing against giving
inmates more freedom to miss deadlines in challenging their
incarceration.

Monday, 10 May 2010

That's the title of John Council's report in today's Texas Lawyer. LINK

In a decision one judge referred to as "Kafkaesque," a 5th U.S.
Circuit Court of Appeals panel found that new evidence of a prison
inmate's alleged mental retardation is not enough to prevent his
execution under the federal death penalty statute.

The Supreme Court outlawed the death sentence for the mentally
retarded in 2002's Atkins v. Virginia , finding that such
executions violate the Eighth Amendment's ban on cruel and unusual
punishment.

The 5th Circuit's April 28 decision in In Re: Bruce Carneil
Webster shows how strict the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) can be in limiting successive petitions for
writs of habeas corpus by death row inmates who do not challenge their
guilt but rather the application of the death penalty, according to two
death-penalty experts. That law, which was designed to limit the
circumstances in which federal courts can grant relief to death row
inmates, can lead to troubling results for inmates who allege they have
new evidence that they are mentally retarded, they say.

But a former U.S. attorney urges caution before assuming the new
evidence would result in a finding of mental retardation.

And:

According to a concurring opinion in the April 28 decision in Webster
, Webster only recently obtained records from the Social Security
Administration — records his trial counsel had requested long before
Webster's 1996 trial. Webster applied for benefits in 1993, a year
before he was indicted for capital murder. To determine his eligibility
for those benefits, three separate government physicians performed
medical and psychological examinations on him. All three physicians
separately concluded that Webster is mentally retarded. While an IQ
score of 70 or below is generally considered to be the threshold of
mental retardation, one of the government doctors found Webster's IQ
score to be 69 or lower, another concluded that Webster's IQ score was
59, and a third simply concluded that Webster suffered from "mental
retardation."

Nevertheless, the majority on the 5th Circuit panel found that
Webster was not eligible for relief under §2255 even in light of newly
discovered evidence. Section 2255 allows appellate courts to hear
subsequent or successive habeas motions that contain: "newly discovered
evidence that, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence that
no reasonable fact finder would have found the movant guilty of the
offense; or a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable."

The majority took issue with Webster's argument in his motion that,
while §2255 applies to newly discovered evidence that would lead to a
defendant being found not "guilty of the offense," it should also
encompass "a claim that the petitioner is 'innocent of the death
penalty.' "

As is his custom, Justice John
Paul Stevens did not ask a question on Wednesday until the lawyer
before him had almost finished his argument.
When Justice Stevens did speak up, it was in a seeming effort to guide
his colleagues on the Supreme
Court toward what he considered to be the central argument advanced
by the death row inmate in the case.

“Let me just ask,” Justice Stevens said, “is this the case in which the
claim is he’s ineligible for the death penalty?”

Corey L. Maze, Alabama’s solicitor general, said that was so.

“The merits of the claim have never been decided?” Justice Stevens went
on.

Mr. Maze said no, adding that the question should be left unresolved and
that the inmate should be executed because his lawyers had raised the
issue too late.

The other justices had been focused solely on that procedural question,
and it was not clear whether Justice Stevens’s attempt to reorient their
thinking had had any effect.

The inmate, Billy Joe Magwood, shot and killed an Alabama sheriff in
1979. At the time, Alabama law allowed defendants to be sentenced to
death only if they had committed murders in connection with at least one
of several listed “aggravating circumstances.”

Though Mr. Magwood’s crime did not fit any of those circumstances, he
was sentenced to death in 1981. In 1985, a federal judge ordered Mr.
Magwood resentenced for unrelated reasons, and he was again sentenced to
death the next year.

Over the years, Mr. Magwood’s lawyers have challenged his sentence on
various grounds, but it was not until 1997 that they raised the question
of whether his was a capital crime under Alabama law in the first
place.

The Supreme Court on Wednesday questioned whether an Alabama death
row inmate can challenge his second death sentence with an argument
state officials said he didn't use when he was first sentenced to die
for shooting a county sheriff.

Lawyers for Billy Joe Magwood want
to argue that Alabama law was changed to make Magwood's crime a capital
offense after it had already been committed.

Defendants aren't
allowed to appeal using arguments that could have been brought in the
original case, but Magwood's lawyers say that since he was sentenced to
die a second time, he should be able to use a new argument in his second
round of appeals.

"If it's the second time around, then it's just
barred," Justice Anthony Kennedy said.

"Well, it shouldn't be
barred. Because it's a new judgment, the defendant should be able to get
relief the second time around," said Jeffrey L. Fisher, Magwood's
lawyer.

Magwood, 58, has been on Death Row since 1981 for the
shooting death of Coffee County Sheriff Neil Grantham in 1979. He got
that death sentence thrown out, but then was resentenced to death.

A
federal judge overturned the new death sentence after Magwood
complained that state law was changed to make his crime a capital
offense after it had already been committed. But the 11th U.S. Circuit
Court of Appeals in Atlanta reinstated the death penalty, saying Magwood
should have complained about the change in Alabama state law in his
first round of appeals.

Last
week, Gov. Rick Perry granted the state's first posthumous pardon to a
man who was innocent of a crime for which he had spent 13 years in
prison. DNA testing cleared Tim Cole of a rape he did not commit, but
unfortunately it came too late — nine years after he had died in
prison. The state must do everything it can to prevent this kind of
tragedy from happening again.

On March 24,
Texas plans to execute Henry Watkins Skinner even though untested DNA
evidence could show we've got the wrong man. DNA testing could resolve
doubts about Skinner's guilt in the 1993 Pampa slayings of his
girlfriend and her two sons, but the state inexplicably has blocked
that testing for more than a decade.

I'm not an
advocate for Hank Skinner. I'm an advocate for the truth. If DNA tests
could remove the uncertainty about Skinner's guilt — one way or the
other — there's not a good reason in the world not to do it.

Some taxpayers
may grumble at spending the public's money on DNA tests for individuals
on death row. That argument doesn't hold water in Skinner's case. In
2000, the investigative journalists at the Medill Innocence Project
offered to pay for the DNA tests. Ten years later, that offer still
stands. There may be other objections to testing the evidence, but they
don't outweigh the potential horror of executing an innocent man.

It is cases like
Skinner's that ended my lifelong support for the death penalty. Any
system driven by the decisions of human beings will produce mistakes.
This is true even when everyone — judges, prosecutors and defense
attorneys — is acting in good faith and working as hard as he or she
can to get it right.

Tim Cole is only
a recent example of the frailties in our criminal justice system.
Several years ago, this newspaper argued persuasively that Ruben Cantu,
a defendant I prosecuted who was put to death in 1993, may well have
been innocent. Twenty years after Cantu's trial, my star witness
recanted his trial testimony. Many people consider his recantation
credible because he had nothing to gain by reversing his position
except a whole lot of trouble.

That case
brought home to me, in a way that nothing else could have, that the
system we trust to determine who may live and who must die simply
doesn't work in all cases. Other investigative stories have revealed
that Texans Carlos DeLuna, who was executed in 1989, and Cameron Todd
Willingham, executed in 2004, were almost certainly innocent.

Since 1973, 139
people in 26 states have been released from death row based on evidence
of their innocence. Eleven of them were in Texas. Many of these people
were freed because of DNA evidence. But DNA testing works only if we
use it.

Skinner's
execution date is just a few days away, but key pieces of evidence have
never been tested, including two knives, one of which might be the
murder weapon; a man's windbreaker, which had blood, sweat and hair on
it and was found next to the victim's body; the victim's fingernails,
which may have DNA evidence under them; and samples from a rape kit.

Skinner has
steadfastly maintained his innocence, but his trial counsel did not
seek DNA testing. His attorney also failed fully to investigate the
potential involvement of another suspect. That man, a relative of
Skinner's girlfriend, had a violent criminal history and an incestuous
relationship with the victim. He had been seen stalking her at a party
on the night of the murder and left the party shortly after she did.
His whereabouts for the rest of the night remain a mystery.

And:

Attorneys for Skinner have filed an appeal with the U.S. Supreme Court
asking the court to stop Skinner's execution in order to decide whether
prisoners can use the Civil Rights Act to compel post-conviction DNA
testing. That's Skinner's last chance, and I hope the court intervenes.
But frankly, I'd rather see Texas clean up its own house on this one.
Before we send a man to his death, shouldn't we do everything in our
power to be certain of his guilt?

Unless the U.S. Supreme Court intervenes, it is likely that 47-year-old death row inmate Hank Skinner
will be executed on March 24 without key pieces of physical evidence in
his case ever having been tested. "We continue to hope that the court
will intervene to ensure that Mr. Skinner is not executed before the
troubling doubts about his guilt can be resolved through scientific
evidence," Skinner's attorney, Rob Owen – who is also director of the Capital Punishment Clinic at the University of Texas' law school – told the Associated Press earlier this month.

And:

Gray County District Attorney Lynn Switzer has objected to
any testing of this evidence, saying that Skinner had a chance to do so
before his 1995 trial but didn't take it – whether that evidence would
reveal that she and her predecessors were wrong about Skinner's guilt –
allowing a killer to remain on the loose for more than a decade – is
apparently none of her concern.

It would seem that the Court of Criminal Appeals, which has
so far denied Skinner's appeals to conduct the DNA testing that could
either clear his name or definitively prove his guilt, is of the same
opinion. In 2001 state lawmakers penned a post-conviction DNA testing
law that would allow inmates to have biological evidence tested for
cases in which there had previously been no access to testing,
advancements in testing might produce more probative results, or,
"through no fault of the convicted person," the evidence had not been
previously tested, but "the interests of justice require DNA testing."
While the third standard would seem to apply to Skinner's case, the
courts so far have not agreed: Apparently it is Skinner's "fault" that
his lawyer had not previously had the evidence tested. The ruling is
troubling to Owens; for starters, it doesn't make sense that Skinner
could have waived his right to testing years before the law even
existed. But more disturbing, perhaps, is the court's apparent
interpretation of the term "fault." In "most places where the law uses
the concept of fault it implies ... a lack of diligence" or other
culpable state, he said. The CCA's ruling here is a "jarring"
redefinition of fault that suggests that if a lawyer advises his client
not to conduct testing, for whatever reason, and the client agrees,
that could be considered a complete waiver of the right to ever have
the evidence tested. "It seems to me they're exalting technicalities
over the substance" of the law.

Whether Skinner will ever get a chance to have that evidence tested
remains entirely unclear – indeed, he has been seeking access to the
evidence since 2000. In November 2009, Owen filed a federal civil suit
against Switzer, seeking access to the evidence, arguing that Skinner's
right to due process has been violated. The district court and U.S. 5th
Circuit Court of Appeals have to date ruled that he is not entitled to
that evidence under the federal statute. An appeal of that decision is
currently pending before the high court. If the court accepts the case
and rules in Skinner's favor, the case will go back to district court,
where Skinner will have a chance to argue, once more, that he should be
allowed access to the as-yet-untested evidence.

Tuesday, 09 March 2010

Attorneys for Hank Skinner have filed a Motion for Remand with the Texas Court of Criminal Appeals. Skinner is scheduled to be executed March 24.

Earlier the month, without a hearing, the state district court with authority over the case rejected Skinner's state habeas petition. The motion seeks to have the Texas Court of Criminal Appeals send the case back to the district court for meaningful review, or to stay the execution and examine the procedural history of the case.

The trial court dismissed Skinner’s habeas corpus application on the ground that he had previously unsuccessfully sought relief in state court – despite the fact that the record clearly shows that his claims -- including his claim of actual innocence -- have never been reviewed by the Texas courts.

The events of the past month highlight how little has changed since Todd Willingham was put to death in 2004 despite powerful scientific evidence casting doubt on his guilt which was available before Willingham's execution. Texas authorities remain shockingly indifferent to the risk of executing an innocent man, placing finality above justice.

Professor David Protess, the Director of the Medill Innocence Project, and eight of his journalism students conducted an extensive investigation of Mr. Skinner’s case in 2000. Their findings and additional background on the case can be found here.

Tuesday, 02 March 2010

The U.S. Supreme Court on Monday refused to hear the case of Texas killer Henry Skinner, sentenced to die March 24 for the bludgeoning death of his live-in girlfriend and the fatal stabbings of her two adult sons.

The Pampa case has generated national furor in anti-death penalty circles after an investigation by student journalists from Chicago's Northwestern University uncovered evidence they believe suggests Skinner may be innocent.

Skinner, 47, was convicted for the 1993 New Year's Eve deaths of Twila Busby, 41, and her sons, Elwin Caler, 22, and Randy Busby, 20. Twila Busby was strangled and beaten on the head at least 14 times, probably with an ax handle.

The court declined the case without comment.

Skinner's petition asked the judges to review the manner in which the U.S. Court of Appeals for the Fifth Circuit analyzed his claim of insufficient counsel. It also sought review of the court's ruling knocking down Skinner's claim that his lawyers failed to adequately investigate another possible suspect in the case.

Pending before the high court is a second petition asking that unanalyzed crime scene evidence be subjected to DNA testing.

Skinner's lead attorney, Robert Owen of the University of Texas' Capital Punishment Center, said the condemned man's hope now rests on the DNA issue and a new appeal filed Monday in state court. In Pampa, Gray County District Attorney Lynn Switzer could not be reached for comment.

Rob Owen, Skinner's attorney, issued the following statement:

"We are disappointed that the Supreme Court chose not to hear this petition. The most serious question raised by Mr. Skinner's case, however, is why the State continues to refuse the DNA testing that could substantiate Mr. Skinner's longstanding claim of actual innocence. That question remains pending before the Supreme Court. We continue to hope that the Court will intervene to ensure that Mr. Skinner is not executed before the troubling doubts about his guilt can be resolved through scientific evidence."

A state habeas petition was filed with the state district court in Gray County on Monday. Details of Skinner's innocence claim are in the pleading beginning on page 8.

Earlier coverage of the case begins with an editorial noted in this post.

The U.S. Supreme Court on Monday struggled with just how bad a lawyer must be to warrant stopping the clock on the time for filing a prisoner's federal habeas petition.

In Holland v. Florida, the justices confronted two issues: whether the one-year deadline for filing habeas petitions under theAntiterrorism and Effective Death Penalty Actcan be tolled for equitable reasons, and whether a lawyer's gross negligence is one of those reasons for halting the clock.

The issues stem from the death penalty conviction of Albert Holland in 1991. After his conviction became final in 2001, Holland had 365 days to file a federal habeas petition. The state of Florida appointed Bradley Collins to represent him in state post-conviction proceedings and Collins filed a state post-conviction motion 351 days into the one-year federal state of limitations. That motion stopped the clock on the one-year deadline, but the clock would resume moving once his post-conviction motion was denied -- leaving him only 14 days in which to file the federal petition. Collins ultimately missed that deadline.

On Monday, Todd Scher of the Law Office of Todd G. Scher in Miami Beach, Fla., told the justices that the 11th U.S. Circuit Court of Appeals was wrong when it held that attorney negligence, even gross negligence, does not entitle a habeas petitioner to a tolling of the limitations period absent additional allegations of "bad faith, dishonesty, divided loyalty, mental impairment or so forth."

What happened in Holland's case, Scher said, "goes beyond garden-variety negligence." He recounted how Holland repeatedly told Collins that he wanted to preserve his right to file a federal petition if his state petition was denied. Collins did not keep in close communication with Holland. The death row inmate made several pro se motions in attempts to remove Collins from his case. Holland, with an eye on the federal filing deadline, also contacted the clerk of the Florida Supreme Court several times to check on the status of his post-conviction appeal when Collins was nonresponsive. His pro se motions were dismissed because, the state argued successfully, he was represented by counsel. More than a month after the Florida Supreme Court issued its decision, Holland learned of the decision after getting access to the prison's library.

When pressed by Justice Samuel Alito Jr. on what the test should be for tolling the limitations period in situations involving attorney negligence, Scher replied, "Extraordinary circumstances coupled with the petitioner's diligence. It's a case-by-case determination. Here we had lack of notice to the petitioner that the state court decision had issued and a failure to communicate."

And:

Eleven circuits agree that equitable tolling is available under the federal statute. The Supreme Court has never explicitly ruled on the issue.

Tuesday, 09 February 2010

The Office of Capital Writs, created by the Texas Legislature in 2009, is on about looking for a director. Here's the posting:

Job Posting: Director, Texas Office of Capital Writs Brand new Texas Office of Capital Writs seeks a Director. The state-funded office, with a $1 million approximate annual budget, will be based in Austin. This is a capital post-conviction office, charged with representing death sentenced inmates in state post-conviction habeas corpus and related proceedings. The Director will be responsible for opening the office, hiring, and supervising the staff and the litigation. This is an extraordinary opportunity to make a difference in Texas.

Desired Qualifications. Membership or eligibility for admission to the Texas Bar;. Significant experience in the defense of death-sentenced inmates;. Qualified to serve as lead counsel in a Texas capital habeas case (see http://www.courts.state.tx.us/courts/ajr.asp );. Commitment to the highest level of quality representation of indigent criminal defendants;. Experience training and supervising other attorneys; . Experience managing and administering an office, ideally in a public defender agency setting (e.g., hiring staff, budgeting, financial reporting, creating effective practices and policies, and dealing with other agencies whose work intersects with that of the Office, such as the courts).. Familiarity with and connection to the national capital defense community, such that s/he will have immediate and ongoing access to the developments and resources necessary to facilitate the highest quality legal representation;. Experience with and commitment to a client-centered approach; . Experience with and commitment to a team-based approach that includes attorneys, mitigation specialists, investigators, experts, and staff; and. Experience and training concerning mental health issues that commonly arise in quality capital defense litigation;

Salary: $89,682 to $147,976, DOE.

How to Apply: By March 1, 2010, Applicants should submit Application, a statement of interest and a resume / CV (with references noted) to: Maurie Levin at mlevin (at)law (dot) utexas (dot) edu.

Earlier coverage of the Office of Capital Writs begins with this post.

Two
representatives of the Constitution Project will testify before the
House Judiciary Subcommittee on the Constitution, Civil Rights, and
Civil Liberties this afternoon at a hearing to consider the impact of
limits on federal habeas corpus
in death penalty cases. Stephen F. Hanlon, Chair of the Constitution
Project’s Board of Directors, Chair of the American Bar Association’s
Death Penalty Moratorium Project Steering Committee, and partner at
Holland and Knight, will testify on behalf of the ABA. The Honorable
Gerald Kogan, Co-Chair of the Constitution Project’s Death Penalty
Committee and former Chief Justice of the Florida Supreme Court, will
testimony on behalf of the Constitution Project. Both will provide
testimony on the urgent need to restore habeas corpus for death penalty cases.

In his testimony submitted to the Subcommittee, Chief Justice Kogan states in part:

“Federal habeas corpus
is an enormously important element of our justice system with deep
roots in our constitutional tradition. In particular, the federal
courts’ authority to adjudicate constitutional claims advanced by state
prisoners is a valuable means by which the Bill of Rights is enforced
in criminal cases. Scarcely anyone contends that the federal courts
should not have this authority. The policy debate is over the proper
arrangements for habeas corpus litigation in the federal forum.”

Mr. Hanlon adds in part:

“[S]tate
governments have failed for many years to implement the necessary
reforms to address long-standing and systemic problems in our death
penalty counsel systems. Mistakes that occur at trial as a result of
these failures are aggravated by ever-tightening restrictions on
federal court review, making it difficult, if not impossible, for
federal courts to correct even the most serious deprivation of
constitutional rights. A system that wrongly sentences people to death
and then erects considerable obstacles to bar judicial review of their
cases is not a system that comports with our principles of justice. It
should not surprise us that one consequence is a loss of public
confidence in the integrity and accuracy of our legal system.”

The Supreme Court will let lower courts consider reinstating a death
sentence for a convicted murderer who twice escaped from prison after
being found guilty of killing a man who was planning to testify against
him.

The high court overturned a lower court decision throwing
out the death sentence against Joseph Kindler for killing one-time
accomplice David Bernstein in 1982.

The 3rd U.S. Circuit Court
of Appeals had said Kindler's lawyer was ineffective and also found
problems with the jury instructions.

State courts had never
decided on Kindler's claims. Instead, those courts said Kindler
forfeited the right to be heard on those issues because of his escapes.

Chief Justice John Roberts said the state court decision has to be considered by the federal courts.

The ruling is here; the ScotusWiki file, here. Earlier coverage of the case is here. Lyle Denniston will post a report at SCOTUS Blog, following this morning's oral arguments at the Court.

Friday, 04 December 2009

That's the title of Linda Greenhouse's latest post at the New York Times Opinionator blog. LINK It's a must-read. Several excerpts:

In overturning a death sentence this week of
a Korean War veteran whose lawyer failed to inform the jury about the
man’s combat-related traumatic stress disorder, the Supreme Court drew
cheers from veterans’ groups and death-penalty opponents. But it also
raised a question:
Is selective empathy better than no empathy at all?

And:

“Ineffective assistance of counsel” is an exceptionally difficult
claim on which to succeed. The Supreme Court has found ineffective
assistance only a handful of times since it raised the bar in a 1984
case, Strickland v. Washington.
That decision requires defendants to prove two elements: that the
lawyer’s performance “fell below an objective standard of
reasonableness” and that there was a “reasonable probability” that the
outcome would have been different if not for the bad lawyering.

The second prong is a special challenge for death-sentenced
defendants, who must demonstrate that an adequate lawyer would have
provided the sentencing jury with enough mitigating evidence to
overcome the weight of the prosecution’s “aggravating evidence.” An
abundance of aggravating evidence is often the reason the prosecution
is seeking the death penalty in the first place.

When the ineffective-assistance claim is made in a habeas corpus petition in federal court, the bar is even higher. Under a 1996 federal law,
the defendant must show that the state court’s decision was not simply
mistaken on its own terms, but that it “was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States” — in other words,
that the state court had all but defied controlling Supreme Court
precedent. The federal appeals court in Atlanta ruled that Mr. Porter
was not entitled to habeas corpus because even if the Florida courts
were wrong to regard his lawyer as adequate, they were not so wrong as
to be unreasonably wrong.

That was the decision the Supreme Court overturned. It was “objectively unreasonable,” the justices said,
to discount the possibility that a decent lawyer, presenting a
convincing narrative of Mr. Porter’s military service and lingering
trauma, could have persuaded the jury to spare his life. The court then
provided such a narrative itself, with a vivid recitation of the
battles Mr. Porter’s unit had fought “under extreme hardship and
gruesome conditions.” The opinion observed that “our nation has a long
tradition of according leniency to veterans in recognition of their
service, especially for those who fought on the front lines as Porter
did.”

There were several notable features to this decision, Porter v.
McCollum. The most obvious was that the 15-page opinion was unanimous
and unsigned, labeled simply “per curiam,” meaning “by the court.” The
court had not heard argument in the case and never formally accepted it
for decision. Evidently the justices concluded that the right decision
was so obvious that they could dispense with the formality of further
briefing and argument.

And:

Setting the Porter and the Van Hook cases side by side, what strikes
me is how similarly horrific the two men’s childhoods were — indeed,
how common such childhoods were among the hundreds of death-row inmates
whose appeals I have read over the years and, I have to assume, among
the 3,300 people on death row today. It is fanciful to suppose that
each of these defendants had lawyers who made the effort to dig up the
details and offer these sorry life stories to the jurors who would
weigh their fate.

I don’t make that observation to excuse the crimes of those on death
row, but only to underscore the anomaly of the mercy the court bestowed
this week on one of that number. Am I glad that a hapless 77-year-old
man won’t be put to death by the State of Florida? Yes, I am. Am I
concerned about a Supreme Court that dispenses empathy so selectively?
Also yes.

An earlier Opinionator post by Greenhouse, the retired Times Supreme Court correspondent, is here. More on Porter v. McCollum is here.

Thursday, 03 December 2009

Lawyer David Dow was called before the state Court of Criminal
Appeals on Wednesday to explain why he blew a court-imposed deadline by
filing an appeal within 48 hours of his client's execution.

The inmate, Danielle Simpson, was executed Nov. 18, but those
particulars weren't the main reason a small crowd gathered in the
Capitol-area courtroom where the state's highest criminal court
normally toils in obscurity. Dow drew an audience because of his role
in another late appeal on behalf of convicted murderer Michael Richard,
whose 2007 case resulted in misconduct charges that are pending against
the court's presiding judge, Sharon Keller.

Richard was not mentioned at the Wednesday hearing, but his presence
was felt. Dow was one of the Texas Defender Service lawyers who tried,
unsuccessfully, to file a late appeal for Richard in 2007 — leading to
charges that Keller improperly closed the court to the inmate on his
execution day.

Dow also testified at Keller's August trial on the charges; the
judge in that case has not delivered his findings to the State
Commission on Judicial Conduct.

Keller did not participate in the hearing and will not join the
court's opinion — to be issued at a future, unspecified date, said
Judge Lawrence Meyers, who directed the proceedings in Keller's
absence.

And:

Dow blamed the missed deadline on a conflict with Simpson's
court-appointed lawyer, Wes Volberding, and on what was described as
Simpson's increasingly erratic behavior. Simpson variously asked for
the Texas Defender Service to replace Volberding and directed
Volberding to abandon all appeals, said Dow's lawyer, University of
Texas law professor Jordan Steiker.

When it was sorted out, Dow and co-counsel Katherine Black received
Volberding's case files — in 15 poorly organized boxes — only nine days
before Simpson's execution date, Steiker said.

At first, Dow and Black anticipated filing a petition stating that
Simpson was ineligible for execution because he was mentally ill. But a
review of the files found another potential claim: that prosecutors had
improperly excluded black jurors at Simpson's trial for kidnapping and
killing an 84-year-old Anderson County woman in 2000. Simpson was
black.

Tuesday, 01 December 2009

Back in 2006, I did a two-day series on embarrassingly bad legal
representation provided by court-appointed appellate lawyers for death
row inmates.

One of those lawyers, Richard Alley, is back in the news as
attorneys for Bobby Wayne Woods — slated for a Thursday execution — are
seeking to delay the lethal injection based in part on Alley’s
“blatantly incompetent” representation. (Read the Alley story here.)

Woods’ new lawyer, University of Texas adjunct law professor Maurie
Levin, argues that Woods cannot be executed because he is mentally
disabled — a practice banned by the U.S. Supreme Court in 2002.

(To see Woods and judge for yourself, click here for the Texas Observer’s videos of an interview with the inmate.)

Accusing Alley of failing to fully and properly plead the inmate’s
mental disability case in state and federal appeals, Levin is asking
the Texas Board of Pardons and Paroles to recommend a 60-day reprieve
so members can judge for themselves whether Woods is mentally competent
for execution.

“(Alley) has been suspended by the state bar and rebuked by and
suspended from practice in the federal courts for his egregious
missteps and incompetence as an appellate and post-conviction attorney
for those condemned to death,” reads a petition for clemency to the parole board.

As linked above, you can read Chuck Lindell's December 2006 series on abysmal performance by court-appointed habeas lawyers, "Writs gone bad." Here's a snippet:

Richard Alley, a Fort Worth lawyer suspended for one year from practicing before his hometown federal court for repeated unprofessional and unethical behavior. A U.S. judge also removed Alley from a federal death row case, questioning his competence in habeas matters.

Monday, 30 November 2009

Two years ago, David Dow and the Texas Defender Service were
embroiled in a controversy after a thwarted last-minute attempt to file
pleadings for a death-row inmate. Now Dow and Katherine Black, his TDS
co-counsel in a different death penalty case, have been ordered to
appear before the Court of Criminal Appeals to explain an “untimely
filing,” and they face possible sanctions under one of the CCA’s rules.

On Nov. 18, the CCA ordered Dow, the TDS litigation director, and
Black, a TDS staff attorney, to appear before the court for a Dec. 2
hearing to show cause for the untimely filed documents in Ex Parte
Simpson. Dow and Black work in the Houston office of TDS, a nonprofit
organization that seeks to improve the representation of death-row
inmates.

As noted in the CCA’s order, Sharon Keller, the court’s presiding
judge, did not participate in Simpson and is not participating in the
court’s show cause hearing for Dow and Black.

Keller faces ethics charges filed by the State Commission on
Judicial Conduct in connection with her statement that the CCA clerk’s
office would close at 5 p.m. on Sept. 25, 2007. TDS had sought to file
a stay of execution and writ of prohibition in Michael Richard’s case
that day after the clerk’s office’s normal business hours. Dow
represented Richard, whom the state executed later that day. Keller
denies the commission’s allegations; she has contended she did nothing
wrong and only responded to an inquiry as to whether the CCA clerk’s
office would remain open past 5 p.m., which was merely an
administrative matter. [“See Tough Fight at Sharon Keller’s Ethics Hearing,” Texas Lawyer, Aug. 24, 2009, page 1.]

According to the CCA’s order in In Re Dow and Black, the two TDS
attorneys filed a subsequent application for a writ of habeas corpus
and a motion to stay the Nov. 18 execution of Danielle Simpson in the
3rd District Court in Anderson County at 4:08 p.m. Nov. 17. Under the
CCA’s Miscellaneous Rule 08-101, adopted June 23, 2008, any motion
relating to a death sentence is deemed untimely if filed less than 48
hours before 6 p.m. on the scheduled execution date. The rule requires
an attorney who seeks to file an untimely motion meant to stop an
execution to “attach to the proposed filing a detailed explanation
stating under oath, subject to the penalties of perjury, the reason for
the delay and why counsel found it physically, legally or factually
impossible to file a timely request or motion.”

Wednesday, 25 November 2009

When Texas reopens its execution chamber after a Thanksgiving break, the first man set to die may be mentally retarded. A 2002 Supreme Court ruling
bans the execution of mentally retarded prisoners. But after years of
being represented by a discredited attorney who ruined any chance for
an appeal based on his disabilities, the fate of Bobby Wayne Woods
rests with the state Board of Pardons and Paroles which can recommend
clemency or a reprieve to Gov. Perry. "It's a long shot at best,"
Woods' attorney Maurie Levin says of the clemency request, "but I think
it's very important to do."

Test scores during his childhood and incarceration show Bobby Woods
has an IQ that hovers at or below 70 — the cut-off point for mental
retardation. He reads at a second grade level and writes childlike letters
— many of which are photocopied and presented as evidence in his
clemency request. Levin asked the board to grant a 60-day reprieve so
that she can produce a videotape of Woods "to adequately present a full
picture of his limitations." She has sued Texas prison officials over
their refusal to allow her to record such a video herself. The Texas Observer captured
Woods on tape last week during an on-camera interview, and now you can
watch the video that Levin wants the clemency board to see.

Woods was sentenced to die
in 1998 for kidnapping, raping and murdering 11-year-old Sarah
Patterson. He disputes his guilt, saying his cousin is responsible for
cutting Patterson's throat. But the cousin committed suicide the week
following Woods' arrest. Levin acknowledges "the facts of this crime
are very difficult," but she notes the ban on executing the mentally
retarded applies no matter how heinous the offense. Levin and students
with the Capital Punishment Center at the University of Texas Law
School began working on Woods' case just before he was scheduled to be
executed in October 2008. Their efforts followed years of cringe-worthy
legal representation by Richard Alley, one of just two attorneys the
Texas Court of Criminal Appeals has removed from its list of lawyers
qualified to represent death row prisoners in their appeals. He visited
Woods only once during the nearly 10 years he represented him.

"For the state of Texas to appoint a lawyer who they then removed
from the list — who was being taken to task in a federal court at the
very same time he's being appointed to represent Bobby in his federal
proceedings, and then for Bobby — a mentally retarded man — to suffer
the consequences of that appointment is atrocious. It infuriates me,"
Levin says.

Alley had a habit of recycling direct appeal claims in his state
capital habeas cases. While he raised 28 issues in Woods' state habeas
appeals, just two were actually new and neither was backed by useful
evidence. In contrast, Levin and her students were able to contact
family members who described how Woods was a slow child who suffered
from learning disabilities and was called "retard" by his classmates,
and "always needed to live with someone who could take care of him"
when he was older. Their investigations revealed that while Woods had
held a steady job as a short-order cook at Waffle House, he had to have
the orders read aloud to him.

Alley did file an appeal claiming Woods was mentally retarded, but it was poorly put together and the court rejected it.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez. Related posts are in the mental retardation category index.

The poor performance of some lawyers in state habeas proceedings for
Texas death row inmates has been well documented in recent years,
sparking State Bar action, legislation, and new rules by the Texas
Court of Criminal Appeals. Chuck Lindell wrote the Austin
American-Statesman's 2006 series noted here. Maro Robbins' earlier coverage of habeas issues in the San Antonio Express-News is here and here.

The Texas Defender Service report, Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts, highlighted problems with the performance of attorneys appointed in the state habeas phase of post-conviction review of death sentences. It's avaialbleat the TDS website. It was published in 2002.

The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.